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LIBRARY 


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STUDIES 


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AMERICAN 
ELEMENTARY  LAW 


BY 


JNO.  C.  TOWNES,  LL.  D. 

Professor  op  Law,  University  of  Texas 

author  of 

"Towneb  on  Texas  Pleading" 

"Townes  on  Torts,"  etc. 


SECOND  EDITION 


CHICAGO 
T.  H.  FLOOD  &  CO. 

1921 


Copyright,  1903 

BY 

Jno.  C.  Townes 


Copyright,  1911 

BY 

Jno.  C.  Townes 


TO 

HON.  B.  8.  GOULD 

THE  CHRISTIAN  GENTLEMAN 

THE  GOOD  CITIZEN 

THE   ABLE  LAWYER,  THE  JUST  JUDGE 

AND  THE  FAITHFUL  TEACHER 

THIS   BOOK   IS   AFFECTIONATELY   INSCRIBED 


PREFACE  TO  THE  FIRST  EDITION. 


For  a  number  of  years  I  have  been  considering  the  matter  of 
Elementary  Law,  trying  to  solve  three  problems  concerning  it: 

First.     "Whether  there  is  any  such  thing. 

Second.     If  so,  what  is  it? 

Third.  If  there  is,  and  it  can  be  identified,  how  can  it  be 
taught? 

On  the  first  point,  I  am  thoroughly  convinced.  I  no  longer 
doubt  that  there  is  matter  which  may  properly  be  called  Elemen- 
tary Law,  and  that  it  is  not  an  ideality  only,  but  is  of  the  most  in- 
tense interest  and  of  the  highest  practical  value.  Indeed,  so  in- 
teresting and  far-reaching  is  it,  that,  in  my  judgment,  nothing  else 
in  the  study  or  practice  of  the  law  is  to  be  compared  to  it. 

On  the  second  point,  I  have  changed  my  mind  materially  since 
I  began  to  give  the  matter  thoughtful  consideration. 

On  this  question  there  are  three  lines  of  thought.  The  first 
does  not  regard  Elementary  Law  as  a  subject  or  matter  distinct 
in  itself,  but  simply  as  a  method  of  presenting  to  the  student  the 
ordinary  rules  of  law  in  nontechnical  language,  a  process  of  sim- 
plifying each  rule  by  changing  the  terms  in  which  it  is  usually  ex- 
pressed, and  thus,  without  systematizing  or  co-ordinating  the 
body  of  rules  in  any  way,  to  make  each  more  easy  of  apprehension 
by  the  student. 

An  adequate  book  prepared  on  this  conception  would  comprise 
a  complete  enumeration  of  all  the  authoritative  rules  of  conduct 
prescribed  in  the  government  whose  laws  it  sought  to  represent, 
stated  simply,  but  arbitrarily,  without  showing  any  relations  be- 
tween them,  or  any  of  the  reasons  on  which  they  are  based. 

The  second  line  of  thought  gives  more  recognition  to  the  idea  of 
the  separateness  of  Elementary  Law,  yet  does  not  admit  this 
fully;  and  it  also  deals  with  it  more  as  a  method  of  presenting  the 
established  rules  of  law  than  as  a  distinct  substantive  matter. 
The  method  employed  is  a  much  more  thoughtful  and  helpful  one 
than  that  in  the  first  school. 


VI  PREFACE  TO  FIRST  EDITION. 

This  view,  put  into  practice  in  the  preparation  of  a  book,  results 
in  a  scientific  treatment  of  the  whole  body  of  established  rules  of 
conduct,  and  an  arrangement  of  its  several  parts  with  reference  to 
each  other,  and  to  the  whole,  thus  presenting  the  co-ordination  of 
these  rules. 

This  is  extremely  useful.  Many  of  the  books  thus  made  are  of 
great  merit,  and  should  be  in  every  law  library.  They  are  very 
helpful  to  the  advanced  student  of  the  law.  There  is,  however,  at 
least  one  serious  objection  to  them  as  text-books,  to  be  used  at  the 
beginning  of  the  course ;  they  necessarily  presuppose,  and  an  in- 
telligent appreciation  of  them  requires,  considerable  knowledge  of 
the  rules  which  they  seek  to  co-ordinate,  of  which  the  beginner  is 
absolutely  ignorant.  "When  placed  at  the  first  of  the  course,  they 
tend  to  mystify  and  discourage,  rather  than  to  enlighten  and  stim- 
ulate. 

The  third  line  of  thought  deals  with  the  foundation  principles 
of  law  as  independent,  substantive  truths,  susceptible  of  apprecia- 
tion and  expression,  and  which  exist  distinct  from  the  rules  of 
conduct  prescribed  in  any  particular  government;  and  regards 
these  latter  rules,  not  as  arbitrary  commands  emanating  from  the 
caprice  of  power,  but  as  earnest  and  approximately  successful  ef- 
forts at  the  embodiment  and  expression  of  the  fundamental  prin- 
ciples; impelling  the  law-making  power  in  their  establishment. 

In  this  view,  there  exist  absolute  principles  of  right  and  wrong, 
which  are  universal,  eternal,  immutable,  and  inexorable;  which 
constitute  the  standards  by  which  all  human  conduct  is  ultimately 
to  be  judged ;  which  principles,  with  the  patience  attainable  only 
by  the  absolute,  are  gradually,  yet  constantly,  revealing  them- 
selves to  men  and  incorporating  themselves  in  human  thought  and 
activity.  This  view  looks  upon  the  actual  system  of  law,  main- 
tained at  any  time  among  any  people  as  but  an  approximation  to 
that  people's  conception  and  appreciation  of  these  absolute  prin- 
ciples. 

From  this  point  of  view,  Elementary  Law — or,  perhaps,  more 
accurately,  Elemental  Law — consists  of  these  absolute  principles, 
and  their  influence  upon,  and  manifestation  in,  the  actual  rules  of 
conduct  prescribed  by  the  particular  government  whose  law  is  be- 
ing studied. 

I  am  fully  persuaded  of  the  correctness  of  the  view  last  pre- 
sented. 


PREFACE  TO  FIRST  EDITION.  Vll 

As  to  the  third  query:  How  can  Elementary  Law  be  taught? 
Since  I  believe  in  the  existence  of  absolute  principles,  and  that  the 
law  of  any  people  is  but  a  tentative  expression  of  that  people's 
common  judgment  and  conscience,  as  to  what  is  required  in  con- 
duct by  these  absolute  principles,  I  am  forced  to  believe  that  the 
effective  and  logical  way  to  teach  the  law  is  to  begin  with  these 
basic  ideas  and  as  thoroughly  as  possible  familiarize  the  student 
with  them,  and  then  to  advance  him  gradually  in  their  orderly 
and  systematic  manifestation  in  the  formulated  rules  of  law.  I 
think  it  is  better  to  teach  the  reason  for  the  rule,  and  follow  this 
with  the  rule  resulting  therefrom,  than  it  is  to  teach  the  rule  and 
then  go  back  to  the  reason  from  which  it  resulted.  The  last  taxes 
the  memory  to  retain  an  unappreciated  formula  and  dulls  interest 
and  hinders  intelligent  reasoning  by  a  sense  of  arbitrariness; 
while  the  first  takes  the  student  through  a  process  similar  to  that 
by  which  the  rule  was  originally  evolved,  and  by  showing  the  rea- 
son and  necessity  for  it  stimulates  his  mind  to  suggest  it,  or  at 
least  to  grasp  it  with  avidity  when  presented  as  a  solution  of  con- 
ditions which  he  already  understands. 

From  this  point  of  view,  an  adequate  treatment  of  Elementary 
Law  involves  an  enumeration  and  accurate  statement  of  these  un- 
derlying principles,  and  a  systematic  and  exhaustive,  though 
gradual,  demonstration  of  their  influence  and  application  in  each 
of  the  actual  rules  of  conduct,  which  exist  in  the  legal  system  un- 
der investigation. 

This  is  a  task  which,  in  its  fullness,  is  beyond  human  attain- 
ment. Its  inherent  difficulty,  perhaps,  explains  the  paucity  of 
acknowledged  effort  in  this  field  of  endeavor.  All  that  can  ever 
be  accomplished  will  be  but  an  approximation.  Under  conditions 
as  they  now  exist,  very  remote  approximation  is  all  that  can  rea- 
sonably be  expected. 

Holding  these  views,  I  have  acted  upon  them  to  the  extent  of 
my  ability  and  have  endeavored  to  exemplify  them  in  the  follow- 
ing pages.  I  have  striven  earnestly,  and  have  given  much  time 
and  thought  to  the  matter  contained  in  them.  From  circum- 
stances beyond  my  control,  the  preparation  of  the  text  for  publi- 
cation has  been  unduly  hurried. 

The  work  has  all  been  done  by  me,  except  a  few  quotations,  duly 
noted;  the  only  extensive  ones  being  from  the  decisions  of  the 
Supreme  Court  of  the  United  States,  two  of  which  constitute 


Vlll  PREFACE  TO  FIRST  EDITION. 

Chapter  III,  Part  Two ;  and  also  except  Chapter  IX,  Part  Three, 
on  Contracts,  which  was  written  by  Mr.  B.  "W.  Townes,  and  is 

published  by  his  permission. 

I  have  not,  in  a  single  particular,  realized  my  ideal.  I  do  not 
think  that  I  have  failed  in  the  purpose  of  the  book.  I  do  not  claim 
that  I  have  succeeded.  If  it  shall  prove  suggestive  and  stimulate 
thought  and  effort  in  the  proper  study  and  teaching  of  the  law,  I 
shall  be  content.  Invoking  the  sympathy  of  those  who  have 
striven,  and  are  striving,  for  the  unattainable,  I  submit  the  result 
to  the  candid  judgment  of  those  who  think. 

Jno.  C.  Townes. 

University  of  Texas,  November  14, 1903. 


PREFACE  TO  THE  SECOND  EDITION 


In  the  preface  to  the  First  Edition  published  in  1903  I  set  out 
briefly  my  ideas  as  to  Elementary  Law  and  the  proper  method  of 
teaching  it.  These  ideas  were  then  largely  experimental.  The 
book  was  prepared  to  enable  me  to  test  their  soundness  and  prac- 
ticability in  my  own  classes.  Hence  no  attempt  was  then  made 
to  extend  its  use. 

I  have  used  the  book  in  my  classes  each  year  since  its  publica- 
tion. The  aggregate  membership  of  these  classes  is  fully  one  thou- 
sand pupils,  most  of  them  men  of  good  ability,  eager  to  acquire 
legal  information  and  legal  habits  of  thought.  I  have  carefully 
noted  the  effort  made  by  these  students  to  master  the  subject  and 
the  practical  results  of  these  efforts,  taking  observations  both  dur- 
ing the  study  of  this  subject  and  of  the  later  topics  in  the  cur- 
riculum. I  am  now  thoroughly  convinced  of  the  practicability 
and  value  of  the  study  of  Elementary  Principles  as  the  introduc- 
tory topic  in  the  study  of  the  law.  Complete  mastery  of  the  fun- 
damentals of  the  law  has  been  acquired  by  very  few,  if  any,  even 
of  the  world 's  greatest  jurists ;  but  the  student  of  average  ability 
and  training  can  get  such  an  acquaintance  with  these  basic  prin- 
ciples in  the  beginning  of  his  legal  studies  as  to  be  exceedingly 
helpful  to  him  in  his  subsequent  courses.  This  acquaintance  gives 
an  approach  to  after  work  which  we  had  sought  in  vain  in  other 
methods  of  teaching.  It  enables  the  student  to  realize  that  the 
law  is  a  connected  and  co-ordinated  system,  not  a  semi-accidental 
collection  of  arbitrary  rules,  and  that  the  differing  rules  which  he 
finds  in  the  respective  topics  are  the  outgrowth  and  manifestation 
of  the  same  unchanging  principles  applied  to  the  differing  matters 
with  which  the  several  topics  deal. 

This  training  of  the  student  in  power  of  legal  thought  and  judg- 
ment, makes  the  work  of  both  teacher  and  pupil  in  each  succeed- 
ing subject  easier  and  more  interesting,  and  by  tracing  these  fun- 
damentals through  each  topic,  each  later  subject  becomes  essen- 
tially a  review  of  each  of  those  which  have  preceded  it. 

ix 


X  PEEFACE  TO  SECOND  EDITION. 

Being  thus  assured  of  the  value  of  the  subject  and  the  prac- 
ticability of  the  manner  of  presenting  it,  I  have  carefully  revised 
the  whole  book,  enlarging  some  portions  and  cutting  down  others 
so  as  to  give  better  proportion  and  greater  symmetry,  and  have  re- 
written almost  the  entire  text.  In  fundamenal  conceptions,  the 
changes  are  few  and  inconsequential ;  in  details  they  are  numerous 
and  important. 

As  stated,  the  First  Edition  was  written  with  a  view  only  to 
experimental  use  in  my  own  classes.  This  edition  is  prepared  in 
the  hope  of  larger  use  and  greater  usefulness.  The  extent  to 
which  these  hopes  are  to  be  realized  is  "in  the  womb  of  the  fu- 
ture." Jno.  C.  Townes. 

Austin,  Texas,  March  31, 1911. 


CONTENTS. 

INTRODUCTION. 
Chapter  I. 

PASE. 

Introductory 1 

Some  General  Principles  of  Law  3 

Sovereignty 3 

Government 4 

Law    6 

Persons 6 

Things   - 7 

Conduct   7 

Accident 8 

Legal  Rights  and  Duties  8 

Creation,  Modification,  and  Destruction  of  Legal  Rights  and 

Duties  10 

Consequences  of  Affirmative  Conduct 11 

Legal  Duties,  and  Consequences  of  Failure  to  Discharge 13 

Legal  Causation   15 

Remedy    15 

Fixedness 16 

Growth  16 

Certitude   16 

Presumptions   17 

Legal  Fiction* 17 

PART  L 
Chapter  I. 

POLITICAL  POWEB. 

Political  power— Definition 18 

Sovereignty — General   Discussion 18 

Investiture  of. 19 

Governments 20 

Taxing   Power 23 

Eminent    Domain 23 

Police  Power  23 

(xl) 


Ill  CONTENTS. 

Chapter  II. 

ORGANIZATION  OF  GOVERNMENTS   IN   THE   TERRITORY   OF  THE  UNITED   STATES. 

Government 25 

Political  organizations  considered   theoretically 25 

Unitary  States 25 

Confederations  26 

Federal  States  26 

Development  of,  in  the  United  States 28 

Confederation  30 

Constitution  of  the  United  States 31 

Construction  of  the  Constitution 32 

Minor  Political   Subdivisions 40 

Counties  41 

Cities  and  Towns 43 

PART  II. 

THE  UNITED  STATES  AND  STATE  GOVERNMENTS  AND  THEIR 
RELATIONS  TO  EACH  OTHER. 

Chapter  I. 

THE    UNITED    STATES    GOVERNMENT. 

Creation    of    46 

Comparison  of  Federal  and  State  Governments 46 

Regulation  of  Suffrage  48 

Legislative   Department   49 

Powers  of  Congress 51 

Executive   Department    » 53 

President  53 

Manner  of  Election 54 

Executive  Departments 55 

Pardons 56 

Treaties    57 

Appointing  Power 57 

Powers  in  Connection  with  Legislation 58 

Intercourse  with  Foreign  Nations 58 

Judicial   Department 69 

Judicial  Function 59 

Judicial   Powers    60 

Federal  Judicial   System 63 

District  Courts 64 

Circuit  Courts  64 

Circuit  Court  of  Appeals 66 

Supreme  Court 67 

Constitutional  Limitations  upon  the  Power  of 70 


CONTENTS.  Xlll 

Chapter  IL 

STATE   GOVERNMENTS. 

State  Governments 71 

General   Powers 72 

Form  of  Government 73 

Legislative  Department 74 

Executive  Department   76 

Judicial  Department   78 

Concurrent  and  Exclusive  Jurisdiction  of  State  and  Federal 

Governments 79 

State  Judicial  Systems 80 

Extraordinary    Governmental    Agencies 82 

Guarantees  in  the  Federal  Constitution  to  the  Several  States 83 

Limitations  In  Federal  Constitution  on  Powers  of  the  States 84 

Chapteb  III. 

RELATIONS  BETWEEN  THE  GOVERNMENT  OF  THE  UNITED  STATES  AND  THE 
STATE  GOVERNMENTS,  AND  BETWEEN  THE  SEVERAL  STATE  GOVERN- 
MENTS. 

Political  Organizations  In  the  United  States 85 

The  States 85 

The  Confederation  87 

Formation  of  the  United  States  Government 88 

Constitution  of  the  United  States 91 

The  Government  of  the  United  States 92 

Legislative  Powers  largely  Exclusive;    Judicial   largely  Con- 
current   93 

Taxation 95 

Relations  hetween  the  States 96 

Chapter  IV. 

BELATI0N8    BETWEEN    THE    GOVERNMENT    OF    THE    UNITED    STATES    AND    THE 
STATE    GOVERNMENTS,    AND    BETWEEN    THE    SEVERAL    STATE    GOVERN- 
MENTS.   (Cont'd.) 
Extracts  from  decisions  of  the  United  States  Supreme  Court:     - 

Gibbons  vs.  Ogden,  opinion  in  part 99 

McCulloch  vs.  Maryland,  opinion  in  part 101 

Veazie  vs.  The  Bank,  opinion  in  part , ...  114 

Buffington  vs.  Day,  opinion  in  full 115 

Kohl  vs.  United  States,  opinion  in  part 121 

Munn  vs.  Illinois,  opinion  in  part 123 

b 


XIV  CONTENTS. 

PART  in. 

LAWS  GOVERNING  THE  CONDUCT  OP  PERSONS. 
Chapteb  I. 

MUNICIPAL    LAW    AND    ITS    SUBJECT    MATTES. 

Definitions   of   Law 124 

Different  Kinds  of  Law,  Enumeration  of 128 

Unwritten   or  Common   Law 128 

Written   Law   129 

Substantive  Law 132 

Adjective  Law  132 

Public   Law    133 

Private  Law  133 

Common    Law 133 

Roman    Law    133 

Civil  Law   134 

Criminal  Law 134 

Equity 134 

Contract  Law  135 

Non-Contract  or  Tort  Law 136 

Tbe  Law  Merchant 136 

Ecclesiastical  Law   136 

Ex  Post  Facto  Law 137 

Retroactive  Law  137 

Military  Law  138 

Martial  Law  138 

Maritime  Law 138 

Purposes  of  Sovereignty  in  Making  Law 139 

Considerations  Controlling  Sovereignty  In  Making  Laws 140 

Legal  Rights   US 

Chapter  II. 

MUNICIPAL  LAW  AND  ITS   SUBJECT  MATTEB.    (Cont'd.) 

Subject  Matter  of  Laws 146 

Citizens,  Subjects 146 

Normal  Persons 149 

Abnormal  Persons 150 

Insane  Persons 150 

Persons  under  Duress 152 

Drunken  Persons 152 

Married  Women  and  Infants 152 

Things    152 

Conduct 154 

Affirmative  Wrong  156 

Negative  Wrong   156 


CONTENTS.  XV 

Chapter  III. 

MUNTCTFAL  LAW  AND  ITS  SUBJECT  MATTER.    (Cont'd.) 

Mental  Condition  as  Affecting  Conduct 157 

In  Criminal  Law 158 

In  Tort  Law 159 

In  Contract  Law 161 

Standards  of  Mental  Capacity 162 

Ignorance  and  Mistake 163 

Accidents  16* 

Chapter  IV. 

MUNICIPAL   LAW   AND    ITS    SUBJECT   MATTER.     (Cont'd.) 

To  whose  Conduct  does  the  Law  look  in  Awarding  Benefits  and 

Fixing  Liability 166 

Primary  Range  of  Right  and  Liability 166 

Secondary  Rrange  of  Right  and  Liability 166 

Legal  Identity 167 

Substitution 168 

Co-operation 170 

Express  Agreement 1 171 

Non-assignability  of  Duty 171 

Public  Policy 173 

Analogous   Relations 173 

To  what  Consequences  of  Conduct  Legal  Liability  Extends 174 

Chapter  V. 

MUNICH? AL  LAW  AND  ITS  SUBJECT  MATTER.    (Cont'd.) 

Status  as  Affecting  Legal  Responsibility 176 

Mental  Unsoundness 176 

Drunkenness    176 

Duress 177 

Infancy 177 

Coverture 179 

Relations  to  Sovereignty 181 

Governmental  Agencies 181 

Direct  Representatives  of  Sovereignty 181 

Political  Subdivisions, — Counties 183 

Cities  and  Towns 183 

Other  Divisions 184 

Officers 185 

Chapter  VI. 

LEGAL    BIGHTS    AND    THEIB    CLASSIFICATION. 

Definition 18S 

Classification 188 


XVI  CONTENTS. 

Personal  Rights 189 

Bodily  Security 189 

Security  to  the  Mind 191 

Security  to  Morals 193 

Freedom  of  Action 194 

Chapter  VII. 

LEGAL    EIGHTS    AND    THEIB    CLASSIFICATION.     (Cont'd.) 

Right  to  Contract > 197 

Essentials  of  Contract 199 

Parties 199 

Purpose 200 

Consideration  201 

Form , 202 

Right  to  Acquire,  Hold,  and  Dispose  of  Property'. 203 

Right  to  Carry  on  Business .^ , .  204 

Right  to  Form  Special  Relations 205 

Freedom  of  Speech 205 

Freedom  of  Thought 206 

Freedom  of  Conscience 206 

Right  to  Reputation 206 

Chapter  VIII. 

LEGAL    RIGHTS    AND    THEIR    CLASSIFICATION.     (Cont'd.) 

Civil   Rights 209 

Equal  Protection  of  Law 209 

Due  Process  of  Law 210 

Political  Rights 212 

Suffrage 212 

Office  Holding 213 

Right  of  Petition 213 

Rights  Against  Particular  Persons 213 

Dependent  on  Contract 213 

Not  Dependent  on  Contract 214 

Rights  in  Things ". 214 

Ownership   215 

Special  Ownership 217 

Rights  in  Persons  218 

Remedial  Rights 220 

Self  Help 220 

Through  Governmental  Agencies 221 

Effect  of  Locality  on  Remedial  Rights 222 

Crime 222 

Tort 223 

Contract 224 


CONTENTS.  XVI 1 

Chapter  IX. 

SPECIAL   KIND  OF   CONDUCT   AFFECTING   LEGAL   RIGHTS    AND   DUTIES. 

Conduct, — General  Discussion 225 

Conduct  Violative  of  Criminal  Law 226 

Conduct  Affecting  Private  Rights 227 

Contract 227 

Executory 228 

Executed 228 

Express 229 

Implied 230 

Agreements  not  Resulting  In  Contract 231 

Lacking  Competent  Parties 231 

Lacking  Consideration 234 

Defective  in  Form 236 

Lacking  Legality  of  Purpose 238 

Quasi-Contracts 239 

Chapter  X. 

SPECIAL  KIND  OF  CONDUCT  AFFECTING  LEGAL  RIGHTS   AND  DUTIES.    (Cont'd.) 

Negligence 242 

Fraud   245 

General  Conception 245 

Legal  Conception 246 

Common  Law  Conception ; 247 

Conception  in  Equity 248 

Conduct  Fraudulent  per  se 250 

Matter  as  to  which  Deception  must  Exist 251 

Means  of  Deception 253 

Results  of  Deception 256 

Parties  Affected  by 257 

Classifications  of  Fraud 257 

Frauds  upon  Persons  not  Parties  to  the  Transaction 262 

Chapter  XL 

SPECIAL  KIND  OF  CONDUCT  AFFECTING  LEGAL  RIGHTS   AND  DUTIES.    (Cont'd.) 

Estoppel   264 

By  Deed 264 

In  Pais 264 

License  266 

Definition 266 

License  by  Law 266 

License  by  Act  of  Parties 267 

Waiver 269 

Limitation 270 


XV1U  CONTENTS. 

Notice  272 

Implications  in  Law 272 

Implications  in  Fact 273 

Death 274 

Chapteb  XII. 

SPECIAL    RELATIONS    AFFECTING    LEGAL    RIGHTS    AND    DUTIES. 

Domestic  Relations. 278 

Marriage  and  the  Family 278 

Common  Law  Marriage 279 

Statutes  Regulating  Marriage 279 

Competency  of  Parties 281 

Effects  of  Marriage 281 

Liability  of  one  Spouse  for  the  Conduct  of  the  Other 283 

Divorce 284 

Parent  and  Child 287 

Illegitimate  Children 289 

Adoption 289 

Guardian  and  Ward 291 

Chapter  XIII. 

SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES.   (Cont'd.) 

Relations  Involving  Substitution 293 

Master  and  Servant 293 

Who  May  Be 295 

Rights  and  Duties  of 295 

Ending  of  the  Relation 302 

Liability  of  Each  for  Wrong  by  the  Other 302 

Chapter  XFV. 

SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES.   (Cont'd.) 

Principal  and  Agent * 305 

How  Formed 305 

By  Agreement. 305 

By  Estoppel 308 

By  Law 809 

Termination  of  Relation 810 

Duties  as  between 811 

Rights  and  Liabilities  as  to  Third  Parties 311 

Chapter  XV. 

SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES.    (Cont'd.) 

Relations  based  on  Co-operation  and  Community  of  Interest 312 

Joint  Actors 312 

Employer  and  Independent  Contractor 312 

Partnerships   313 


CONTENTS.  XIX 

Chapter  XVI. 

SPECIAL  RELATIONS  AFFECTING  LEGAL  BIGHTS  AND  DUTIES.   (Cont'd.) 

Corporations  317 

Definitions 317 

Enumeration  of  Essentials  and  Powers 321 

Essentials 322 

Different  Kinds 326 

How  Formed 327 

Powers 330 

Ultra  Vires  331 


Chapter  XVII. 

SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES.   (Cont'd.) 

Charter 334 

Capital  Stock 340 

Membership 342 

Internal  Government 344 

Corporate  Funds 345 

Corporations  De  Facto 347 

Chapter  XVIII. 

property. 

Ownership  351 

General  Conception 351 

Elements  of  Ownership 352 

Right  of  Possession 353 

Right  to  Use 355 

Right  to  Profits 355 

Right  to  Modify 356 

Right  to  Dispose  of 356 

Acquisition 356 

Discovery 357 

Conquest 358 

Production 358 

Increase  360 

Legal  Succession  to  the  Rights  of  Another 360 

By  Act  of  Both  Parties 361 

By  Act  of  the  Transferee 362 

By  Act  of  the  Transferor 363 

By  Operation  of  Law 364 

By  Act  of  Governmental  Agencies 365 


XX  CONTENTS. 

Chapteb  XIX. 
peopeety.    (Cont'd.) 

Limitations  on  Property  Rights 370 

Eminent  Domain 370 

Taxation , 370 

Police  Power.. 370 

For  Protection  of  Individuals 371 

General  Ownership 373 

Special  Ownership . . . 373 

Title "...  374 

Subject  Matter  of  Ownership 375 

Things  Permanent  and  Transitory 376 

Things  Movable  and  Immovable 376 

Things  Corporeal  and  Incorporeal 376 

Things  Real 377 

Land 378 

Fixtures .380 

Easements 381 

Tenures 384 

Chapteb  XX. 
peopebty.   (Cont'd.) 

Estates 386 

Enumeration  of 386 

Real  and  Personal  Property 391 

Real  Estate 391 

Personal  Property 392 

Licenses  392 

By  Law   394 

Fences 395 

Rights  in  Water 395 

Subterranean 395 

Surface 397 

In  Streams 397 

Conveyances 399 

Form 399 

Registration 399 

Innocent  Purchasers 400 

Violation  of  Rights  in  Land 401 

Facts  Proving  Title 402 

Chapteb    XXI. 

PEBSONAL    PEOPEBTY. 

Transfers  of  Title 406 

Sales   405 


CONTENTS.  XXI 

Barter 407 

Gifts 407 

Bailments 407 

Incorporeal  Personal  Property 408 

Choses  in  Action  409 

Patents .: ...  409 

Copyrights 410 

Good  Will ." 411 

Trade  Marks 411 

Transmission  of  Property  on  the  Death  of  the  Owner 413 

Wills   414 

Inheritance 414 

Administration 415 , 

Chapter  XXII. 

PUBLIC  UTILITIES   AND   PRIVATE  PROPERTY   APPLIED  TO   PUBLIC   USES. 

Matters  Purely  Public 416 

Public  Utilities 417 

Extent  of  Governmental  Control "418 

Special  Privileges. i  418 

Duties  due  the  Public . . . 419 

Common  Carriers 419 

Duties  and  Liabilities  . 420 

Efficient  Service 420 

Prompt  Service 421 

Safe  Service 422 

No  Unjust  Discrimination 423 

Reasonable  Charges 425 

Courtesy , 426 

Right  to  Change  Legal  Duties  by  Contract 426 

Telegraph  and  Telephone  Companies 430 

Other  Public  Utilities 434 

Private  Property  Charged  with  Public  Uses 434 

PART  IV. 

PROCEDURE. 
Chapter  I. 

LEGAL   SANCTIONS. 

Necessity  For 437 

Classification  438 

Rewards  439 

Penalties 439 

Sanctions  Applied  by  Individuals 440 


XX11  CONTENTS. 

Sanctions  Applied  by  Governmental  Agencies 440 

For  the  Protection  of  the  Public 441 

Remedies  to  Protect  Private  Rights 442 

Preventative  Remedies 443 

Redressive  Remedies 443 

Damages 443 

Chapteb  IL 

COURTS. 

Nature  and  Organization 447 

Definition 447 

Judges 448 

Jury 449 

Clerks 450 

Sheriffs  or  Marshals 450 

Attorneys-at-Law  450 

Different  Kinds  451 

Common  Law 451 

Equity    456 

Of  Blended  Jurisdiction 459 

Chapteb  III. 

HOW   JURISDICTION   OF   A   CASE   IS   ACQUIRED. 

Parties    461 

Things    462 

Subject  Matter  462 

Issues    463 

Jurisdiction   463 

Kinds  of  Proceedings 464 

Potential  Jurisdiction  464 

Active  Jurisdiction  465 

Chapter  IV. 

PLEADING. 

Definition    469 

Manner  of  Presenting  and  Joining  Issues 470 

Defensive  Pleadings  471 

Order  of  Pleadings  472 

Number  of  Defenses 473 

Amendments   473 

Notice  of  Filing 473 

Motions 474 


CONTENTS.  XX111 

Chapter  V. 

EVIDENCE. 

Who  Must  Prove 475 

What  Must  be  Proven 477 

Means  of  Proof 477 

Witnesses  477 

Written  Instruments 479 

Proof  of  Genuineness 481 

Best  Evidence  Rules 482 

Relaxations  of  Rule  One . .  482 

Exceptions  to  Rule  Two 486 

Demonstrative  or  Real  Evidence 488 


Chapteb  VI. 

evidence.  (Cont'd.) 

Nature  of  the  Matters  which  may  be  Introduced  In  Evidence 

Facts  490 

Classifications  of  Evidence 491 

Original  and  Hearsay 492 

Primary  and  Secondary 493 

Direct  and  Circumstantial 494 

Contradictory  and  Corroborative 494 

Independent  and  Cumulative 495 

Res  Ctestae 495 

Dying  Declarations 496 

Statements  Against  Interest 496 

Relation  of  Facts  to  the  Matters  in  Controversy 498 

Function  of  Judge  and  Jury 500 

Credibility  of  Witnesses 502 

Weight  of  Evidence 502 

When  Is  Proof  Sufficient 605 

Chapter  VII. 

TRIALS. 

How  Conducted  507 

Judgment 508 

Revision  of 508 

Enforcement  510 


X30T  CONTENTHL 


PART  V. 

APPLICATION  OF  GENERAL  RULES  TO  CRIMINAL,  TORT,  AND 
CONTRACT  LAW. 

Chapter  I. 

CRIMINAL  LAW. 

Classification  of  Crimes 512 

Defining  Crimes  a  Legislative  Function 614 

Mental  Capacity,  Motive,  and  Intent  in  Crime 515 

Evidences  of  Intent 519 

Ignorance  and  Mistake 519 

Duress 520 

Who  May  Commit 521 

Connection  of  Parties  with  Particular  Crimes 522 

Punishments  523 

Different  Classes  of  Offenses 524 

Procedure 525 

Juries   526 

Pleadings  by  the  State 526 

Pleadings  by  the  Defendant 527 

Evidence    528 

Argument  of  Counsel 528 

Charge  and  Verdict » 528 

Judgments   529 

Constitutional   Guarantees 529 

United  States  Constitution 529 

State  Constitutions 530 

Chapter  II. 

TORTS. 

General  Conception    533 

Definition 534 

Contrasted  with  Crimes  and  Breaches  of  Contract 535 

How  Committed 537 

Status  as  Affecting  Parties 539 

Party  Injured 539 

Wrong-Doer 539 

Sovereignty 539 

Counties 539 

Cities  and  Towns 540 

Public   Officers 540 

Natural  Persons 540 

Combinations  of  Natural  Persons 541 

For  Whose  Tortious  Conduct  One  is  Responsible 542 


CONTENTS.  XXV 

Damages 543 

For  What  Consequences  of  Conduct  Liability  Attaches 544 

Discharge  of  Liability 544 

Indemnity  and  Contribution 545 

Chapteb  III. 

SOME  NAMED  TORTS. 

Negligence 547 

Definition 547 

Negligence,  Matter  of  Law  or  Fact 548 

Contracting  Against  Liability  for 549 

Remote  and  Proximate  Cause 551 

Failure  of  Duty  Necessary  to 551 

Contributory 552 

•        Imputed   . 553 

Remedies 554 

Nuisance 554 

Definition 554 

Nature  of  Injury  Necessary  to -. 557 

Natural  Conditions 559 

Must  Interfere  with  Ordinary  Person 559 

Direct  Results  of  Wrong 559 

In  Water,  Light,  and  Air 560 

Rights  of  Way 561 

Torts  Violative  of  Bodily  Rights  '. 562 

Assault  and  Battery   562 

False  Imprisonment 562 

Malicious  Prosecution   563 

Poisoning  564 

Defamation 564 

Definition   564 

Publication    ; 564 

Nature  of  the  Idea  Conveyed 564 

Falsity  of  the  Idea 565 

Concerning  Another 566 

Without  Legal  Excuse  566 

Libel  and  Slander 566 

Absolute  Privilege 566 

Conditional  Privilege 567 

Damages    567 

Torts  Affecting  Property  Rights 568 

Trespass   "...  568 

Fraud    569 

Torts  Affecting  Real  Property  Only  573 

Waste    573 


XXTi  CONTENTS. 

Injuries  to  Easements  574 

Cloud  on  and  Slander  of  Title 574 

Torts  Affecting  Personal  Property  Only 575 

General  Discussion  575 

Interference  under  Process 576 

Incorporeal  Rights  577 

Torts  against  Rights  In  Another 578 

General  Discussion  578 

Injuries  Resulting  in  Death 579 

Chapteb  IV. 

OUTLT1CE  OF  THE  LAW  OF  CONTRACTS. 

Definition 582 

Essentials 583 

Offer  and  Acceptance 583 

Capacity  of  Parties 584 

Natural  Persons 584 

Aliens  585 

Infants   585 

Lunatics  and  Drunkards 586 

Married  Women 587 

Corporations  587 

Consideration   588 

Necessity  For 588 

What  is 589 

Adequacy  of 590 

Legality  of 590 

Executed  or  Executory  but  not  Past 590 

In  Negotiable   Instruments 591 

Form  591 

Written  or  Parol 591 

When   Writing  Required 591 

Statute  of  Frauds  595 

Effect  of  Non-Compliance 695 

Chapteb  V. 
otnxrNE  of  the  law  of  contracts.   (Cont'd.) 

Genuineness  of  Assent 696 

Mistake  596 

Of  Law 596 

Of  Fact 597 

Misrepresentation  and  Fraud 598 

Elements  of 599 

Intent  to  Deceive  and  Deception 601 

Action  by  the  Deceived 601 


CONTENTS*  XXvil 

Duress 601 

Definition 601 

Duress  of  Imprisonment 602 

Per  Minos 602 

Effect  of 602 

Undue  Influence 603 

Legality  of  Object 603 

Rules  of  Construction 604 

Effect  of  Illegality 605 

Agreements  wholly  Executed 605 

Agreements  Performed  by  One  Party 605 

Agreements  Growing  out  of  Prior  Illegal  Agreement 607 

In  Hands  of  Assignee 607 

Illegal  In  Part 608 

Classification  of  Illegal  Agreements 608 

Chapter  VI. 

OOTXINE  OF  THE   LAW   OF   CONTRACTS.    (Cont'd.) 

Different  Kinds 610 

Covenants  and  Conditions 610 

Classifications 611 

Express  and  Implied 611 

Entire  and   Severable '612 

Joint,  Several,  and  Joint  and  Several 612 

Negotiable  and  Non-Negotiable 612 

Operation  of 613 

At  Common  Law 613 

In  Equity 615 

Methods  of  Assignment 615 

Effect  of  Assignment 616 

Interpretation  of 617 

Rules  of  Evidence 617 

Parol  Contracts 617 

Written  Contracts 617 

Existence  of  the  Document 617 

Evidence  that  It  is  a  Contract 618 

Evidence  as  to  Terms 618 

Construction  of 619 

Rules  as  to  Whole  Instrument 619 

Rules  as  to  Words  and  Phrases 620 

Discharge   of 621 

By  Agreement 622 

By  Performance 623 

By  Impossibility  of  Performance 624 

By  Operation  of  Law 624 

By  Breach 625 


STUDIES 


IN 


AMERICAN   ELEMENTARY  LAW 


CHAPTER  I. 


INTRODUCTORY. 


Our  subject  is  Elementary  Law  in  the  United  States.  These 
terms  embrace  the  fundamental  principles  which  are  embodied  in 
and  operate  through  our  American  governmental  institutions, 
the  foundations  on  which  the  whole  fabric  of  American  juris- 
prudence, government  and  law  rests,  and  their  influence  and 
manifestation  in  and  through  this  fabric.  Thus  understood,  few 
subjects  equal  it  in  importance  and  interest,  and  none  can  more 
worthily  or  profitably  engage  the  time  and  effort  of  the  student 
of  Law. 

These  principles  are  few,  but  their  application  to  the  almost 
infinite  variety  and  complexity  of  facts  and  conditions  which  go 
to  make  up  the  sum  of  American  life,  public  and  private,  is  most 
varied  and  exceedingly  difficult.  The  attempt  at  this  application 
by  the  numerous  States,  legislatures,  courts,  and  law  writers  at 
widely  different  times,  and  under  widely  different  circumstances, 
has  led  to  an  almost  infinite  number  of  legal  rules  or  formulae.  The 
body  or  aggregate  of  these  rules,  in  the  main  consistent  and  just, 
yet  occasionally  inconsistent  and  unjust,  we  are  taught  to  look 
upon  as  the  law,  and  much  of  the  time  devoted  to  legal  education 
is  given  to  classifying  and  assimilating  these  formulae  and  fixing 
1 


2  AMERICAN   ELEMENTARY  LAW. 

them  in  the  mind  of  the  student  as  the  roles  which  are  to  control 
in  his  future  professional  career. 

This  study  of  the  formulated  rules  is  good,  but  it  is  not  the 
best ;  for,  valuable  as  is  the  rule  deduced  from  the  principle,  and 
authoritative  as  is  the  expression  of  the  rule  in  statute,  or  deci- 
sion, or  recognized  text,  still  neither  student  nor  lawyer  nor  judge 
will  ever  see  in  the  rule  its  highest  merit  or  obtain  from  it  the 
safest  guidance  until  he  is  familiar  with  the  great  principles 
which  secured  its  approval  and  led  to  its  establishment.  Let  us, 
then,  give  ungrudgingly  our  time  and  patience  and  energy  and 
mind  in  searching  for  these  basic  principles  and  tracing  out  their 
influence  and  application.  I  ask  your  aid  in  this  search ;  for,  sad 
to  say,  notwithstanding  the  interest  and  importance  of  the  un- 
dertaking, I  have  been  unable  to  find  any  one  who  has  diligently 
and  successfully  pursued  it. 

There  are  many  books  on  Elementary  Law,  some  good,  some  bad, 
some  indifferent.  Some  are  fine  treatises  on  jurisprudence ;  some 
are  apparently  efforts  to  state  legal  rules  in  simple  and  non-techni- 
cal language ;  some  are  fine  analyses  of  our  institutions  and  quite 
scientific  presentations  of  legal  rules,  but  I  have  found  in  none  of 
them  an  attempted  statement  of  the  underlying  principles  on 
which  our  institutions  and  rules  of  law  are  founded,  nor  an  effort 
to  ascertain  and  point  them  out  or  show  their  influence  in  the  de- 
velopment of  our  American  system.  I  appreciate  the  difficulty  of 
the  task  and  acknowledge  in  advance  my  incapacity  to  discharge 
it ;  but  if  it  is  never  attempted  it  will  never  be  achieved,  and  if  it 
be  attempted,  there  is  at  least  the  possibility  of  approximate  suc- 
cess; and  even  decided  failure  might  still  prompt  to  further  and 
more  successful  endeavor  by  others  more  capable. 

This,  then,  will  be  the  order  of  our  work :  to  ascertain  and  state 
as  clearly  as  possible  as  many  of  the  fundamental  principles  upon 
which  our  government  and  law  are  founded  as  we  may  be  able, 
and  then  to  develop  their  practical  application  and  influence — 

First — In  the  action  of  sovereignty  in  the  organization  and 
maintenance  of  our  governments ; 

Second — In  the  operation  and  working  of  these  governments ; 

Third — -In  the  general  rules  regulating  and  governing  the  con- 
duct of  individuals ; 

Fourth — In  the  law  of  procedure,  and 


INTRODUCTORY.  8 

Fifth — In  a  general  but  more  specific  manner  in  the  three  great 
divisions  of  Criminal  Law,  Tort  Law  and  Contract  Law. 

Many  of  the  principles  thus  dealt  with  are  applicable  in  all  five 
of  these  connections,  and  some  in  more  than  one  but  less  than  all, 
and  some  in  only  one.  It  would  consequently  involve  consider- 
able repetition  and  loss  of  time  to  take  each  up  separately  and 
show  or  attempt  to  show  its  effect  throughout  the  whole  body  of 
the  law.  To  avoid  this  and  to  reduce  the  labor  and  liability  to 
confusion,  the  subject  will  be  presented  under  the  five  general 
subdivisions  indicated  above,  and  matters  common  to  more  than 
one  will  be  treated  at  some  length  in  the  most  appropriate  connec- 
tion and  be  dealt  with  more  briefly  in  others,  \rith  reference  to 
the  fuller  treatment. 

SOME  GENERAL  PRINCIPLES  OF  LAW. 
Sovereignty. 

1.  Political  power  embraces  the  rightful  authority  to  organize 
and  operate  a  localized  government,  based  upon  physical  force 
and  capable  of  maintaining  itself  against  both  external  and  in- 
ternalfoes,  and  of  exercising  control  over  all  persons  and  things 
within  its  territorial  limits. 

2.  The  sum  of  these  powers  is  sovereignty.  The  person  or  col- 
lection of  persons  in  whom  these  powers  exist  is  sovereign.  All 
the  persons  subject  to  the  same  sovereign  are  a  people. 

3.  "A  State  is  a  body  of  persons,  living  within  a  specified  ter- 
ritory, permanently  organized  for  the  purposes  of  government. ' ' 

4.  In  our  American  institutions,  all  of  these  political  powers 
are  not  vested  in  any  one  collection  of  persons.  They  are  divided ; 
those  which  are  usually  denominated  National  are  vested  in  a 
designated  portion  of  the  people  of  the  United  States  as  a  whole, 
while  those  which  are  local  or  domestic  are  vested  respectively  in 
designated  portions  of  the  people  of  the  several  States. 

5.  This  division  of  political  power  results  in  two  bases  of  gov- 
ernmental authority,  the  first  National  or  Federal,  and  the  second 
local  or  State.  Of  the  first  there  is  but  one,  the  "people"  of  the 
whole  United  States,  whose  jurisdiction  extends  over  the  whole 
territory  of  the  United  States.  Of  the  second  there  are  many,  con- 
sisting severally  of  the  ' '  people ' '  of  each  State,  each  distinct  from 
every  other  and  having  jurisdiction  only  in  the  territory  of  the 


4  AMERICAN   ELEMENTARY   LAW. 

particular  State.    Each  of  these  is  supreme  within  the  sphere  of 
its  political  activity. 

6.  Whether  or  not  this  division  of  subject  matter  over  which 
political  power  has  ultimate  jurisdiction  destroys  the  sovereign 
nature  of  the  power  as  to  the  matters  within  its  control  is  an  aca- 
demic question  with  which  we  have  no  concern  further  than  to 
guard  ourselves  against  the  erroneous  doctrine  that  political 
power  can  not  thus  be  limited  as  to  subject  matter  without  waiv- 
ing the  supreme  control  over  the  matters  to  which  it  properly  per- 
tains. In  our  American  Institutions  the  people  of  each  state  and 
the  people  of  the  whole  United  States  are  each  supreme  in  their 
respective  fields  of  political  activity.  In  the  academic  sense  of  un- 
limited political  power,  neither  is  sovereign.  In  the  practical  and 
legal  sense,  each  is  sovereign  within  its  own  sphere  of  action. 

7.  The  first  duty  of  sovereignty  is  to  perpetuate  itself. 

8.  The  second  duty  of  sovereignty  is  to  protect  the  whole  people 
subject  to  its  jurisdiction  in  their  collective  or  public  capacity. 

9.  The  third  duty  of  sovereignty  is  to  protect  all  the  people  sub- 
ject to  its  jurisdiction  in  their  just  rights  individually. 

10.  Sovereignty  can  not  abdicate  its  functions  nor  grant  them 
irrevocably  to  its  governmental  agents. 

11.  Sovereignty  may  delegate  the  exercise  of  its  powers  to  pub- 
lic agents  for  public  purposes. 

12.  A  sovereign  will  not  employ  its  agencies  against  itself,  nor 
give  aid  to  persons  engaged  in  the  violation  of  its  laws. 

13.  Political  power  has  three  phases  or  aspects:  First,  Deter- 
minative; second,  Applicatory,  and  third,  Executive. 

Government. 

14.  The  system  of  agencies  created  and  maintained  by  a  sover- 
eign through  which  to  perpetuate  itself  and  discharge  its  func- 
tions, is  a  government. 

In  America  governments  are  created  and  perpetuated  by  writ- 
ten instruments  called  constitutions. 

15.  These  constitutions  necessarily  have  parts  of  four  different 
natures,  viz ;  creative,  perpetuative,  functional,  and  restrictive. 

16.  The  creative  parts  are  those  providing  for  the  institution 
and  organization  of  government. 

17.  The  perpetuative  are  those  providing  for  the  renewal  or 
continuation  of  the  government. 


INTRODUCTORY.  9 

18.  The  functional  are  those  which  distribute  power  and  duty 
among  the  several  agencies,  and  provide  for  the  exercise  of  the 
one  and  the  discharge  of  the  other. 

19.  The  restrictive  parts  are  those  which  reserve  to  the  sover- 
eign creating  the  government,  to  the  people  collectively  or  indivi- 
dually, rights  and  privileges  which  the  goverment  can  not  inter- 
fere with  or  take  away ;  or  limit  the  exercise  of  power  conferred 
upon  the  governmental  agencies.  These  restrictions  are  frequent- 
ly, though  not  always,  set  out  in  a  Bill  of  Rights. 

20.  In  all  American  constitutions,  the  distinctions  between  de- 
terminative, applicatory,  and  executive. powers  are  recognized,  and 
a  different  department  of  government  is  provided  to  exercise 
each,  called,  respectively,  the  Legislative,  Judicial,  and  Executive 
Departments. 

21.  The  division  of  the  subject  matter  as  to  which  the  people  of 
the  several  states,  and  the  people  of  the  whole  United  States,  re- 
spectively are  sovereign,  results  in  the  establishment  of  two  gov- 
ernments, each  supreme  within  the  sphere  of  political  activity  and 
each  without  power  as  to  matters  exclusively  within  the  jurisdic- 
tion of  the  other,  and  each  having  some  power  over  those  matters 
which  are  concurrently  within  the  spheres  of  both. 

22.  The  line  of  separation  between  these  powers  is  drawn  by  the 
Constitution  of  the  United  States,  all  powers  conferred  by  that 
instrument  upon  the  Federal  Government,  pertaining  to  it,  and 
all  powers  not  so  conferred,  remaining  with  the  people  and  with 
the  states. 

23.  The  United  States  Constitution  should  be  construed  fairly 
according  to  the  natural  meaning  and  import  of  its  language,  al- 
lowing to  the  Federal  Government  all  those  powers  which  pass  to 
it  by  such  construction,  and  denying  to  it  all  powers  which  do  not 
so  pass  to  it. 

24.  The  powers  delegated  to  governmental  agencies  are  trusts 
for  the  benefit  of  the  sovereign  and  the  people  organizing  the  gov- 
ernment, and  are  not  for  the  benefit  of  those  agencies,  or  persons 
acting  for  them.  Such  agencies  have  only  the  authority  conferred 
upon  them  by  the  sovereign. 

25.  A  person  who  is  directly  interested  in  the  exercise  or  the 
results  of  the  exercise  of  governmental  power  can  not  act  for  the 
sovereign  in  its  exercise. 


6  AMERICAN   ELEMENTARY   LAW. 

26.  In  the  administration  of  government,  the  safety  of  the  peo- 
ple is  the  chief  end. 

27.  The  government  should  interfere  with  the  individual  only 
so  far  as  the  public  good  requires. 

28.  The  public  good  is  best  subserved  by  equality  of  right  and 
duty  among  all  the  individuals  subject  to  the  government. 

This  is  correct  in  theory,  but  its  practical  application  is  ren- 
dered impossible  by  the  manifest  inequality  in  merit  and  capacity 
in  individuals  and  the  classes  into  which  they  are  divided. 

So  that  the  actual  present  rule  is  equality  in  protection  and  as 
near  approach  to  equality  in  right  and  duty,  privileges  and  bur- 
den as  the  difference  in  individuals  and  their  conditions  will  per- 
mit consistently  with  the  public  good. 

Law. 

29.  Law  is  an  authoritative  rule  of  being  er  conduct.  A  muni- 
cipal law  is  a  rule  of  being  or  conduct  established  by  political 
power  capable  of  enforcing  it.  The  law  of  any  State  or  Nation  is 
the  aggregate  of  such  rules  established  and  enforced  by  it. 

30.  The  subject  matter  with  which  municipal  law  deals  is  per- 
sons, things  and  conduct. 

Persons. 

31.  A  person  is  any  being  capable  of  sustaining  legal  relations, 
that  is,  of  having  legal  rights  and  owing  legal  duties. 

32.  Persons  are  natural  and  artificial.  The  first  embraces  all 
human  beings.  The  second,  all  legal  entities  created  by  sovereign 
power  for  designated  purposes,  having  such  powers  and  rights, 
and  subject  to  such  duties  and  obligations,  as  the  creating  power 
prescribes. 

33.  A  normal  person  is  one  who  sustains  the  political  status  of 
citizen  or  subject  to  the  sovereign  who  is  acting  regarding  him, 
and  whom  the  law  regards  as  capable  of  determining  his  own  con- 
duct. 

An  abnormal  person  is  one  not  a  citizen  or  subject,  or  who  is, 
in  reality,  or  by  legal  implication,  regarded  as  incapable  of  self- 
determination.  The  general  rules  of  law  are  made  for  normal 
persons.  They  are  changed  for  the  benefit  of  abnormal  persons 
as  justice  may  require,  and  appropriate  rules  are  provided  as  to 
them. 

34.  The  principal  abnormal  conditions  recognized  by  law  are 


INTRODUCTORY.  7 

alienage,  mental  unsoundness,  drunkenness,  duress,  infancy  and 
coverture,  each  of  which  is  given  such  effect  in  dealing  with  per- 
sons subject  thereto  as  justice  and  public  policy  require. 

Marriage. 

35.  The  law  recognizes  the  necessity  of  marriage  and  the  de- 
sirability of  protecting  the  respective  spouses  in  the  rights  inci- 
dent to  the  married  state. 

The  common  law  regards  the  husband  and  wife  as  one  person, 
the  husband  having  the  right  of  control.  This  is  much  modified 
by  statute  in  many  States. 

Family. 

36.  A  family  is  a  legal  institution  consisting  of  a  number  of 
persons  between  and  among  whom  there  exists  the  duty  to  main- 
tain and  support  on  part  of  one  of  them  and  the  right  to  be  main- 
tained and  supported  on  part  of  the  others,  which  rights  and  du- 
ties result  from  status  and  not  from  contract. 

Things. 

37.  A  thing  is  any  existence  not  a  person.  Corporeal  things 
are  those  discernible  by  the  natural  senses.  Incorporeal  things 
are  those  not  discernible  by  the  natural  senses. 

Conduct. 

38.  Conduct  is  every  manifestation  a  person  makes  of  him- 
self. The  legal  standard  or  unit  by  which  conduct  is  measured 
is  the  average  man. 

39.  Conduct  is  affirmative,  including  all  forms  of  human  ac- 
tivity, or  negative,  including  all  forms  of  failure  or  omission  to 
act  when  action  is  a  duty.  The  same  conduct  may  be  affirmative 
from  one  point  of  view  and  negative  from  another. 

40.  All  affirmative  conduct  violative  of  the  legal  rights  of  an- 
other, and  all  negative  conduct  in  neglect  or  breach  of  legal  duty 
resting  upon  the  person  failing,  is  unlawful. 

41.  The  law  takes  no  cognizance  of  mental  conditions  or  de- 
signs not  manifested  in  conduct  either  affirmative  or  negative. 

42.  The  standard  by  which  to  determine  the  sanity  of  a  person 
as  to  any  particular  conduct  is,  Did  the  person  at  the  time  have 
sufficient  mental  capacity  to  understand  the  legal  nature  of  the 
conduct  and  its  probable  results  and  consequences. 


8  AMERICAN   ELEMENTARY   LAW. 

Motive  is  that  which  induces  action. 

Intending  is  the  process  through  which  the  mind  and  will  pass 
in  yielding  to  or  rejecting  motive. 

Intent  is  the  state  of  mind  resulting  from  the  process  of  in- 
tending. 

Purpose  is  the  end  to  be  attained. 

43.  The  effect  of  design  and  motive  upon  conduct  differs  in 
different  branches  of  the  law.  In  criminal  law,  mental  capacity, 
motive  prompting  conduct  and  intent  are  almost  always  taken 
into  account  and  are  usually  controlling  in  determining  legal 
liability;  in  tort  law,  mental  capacity,  motive  and  intent  are 
usually  unimportant  as  regards  liability  for  actual  damages, 
though  in  heinous  cases  they  are  taken  into  account  in  allowing 
punitive  or  exemplary  damages ;  in  contract  law,  mental  capacity 
is  essential  to  the  assumption  of  obligation,  but  mental  capacity 
and  motive  are  of  no  consequence  in  determining  the  conse- 
quences of  breach  of  contract  obligation  once  validly  assumed. 

Accident. 

44.  An  accident  is  "the  happening  of  an  event  without  human 
agency,"  or  if  through  human  agency,  without  the  concurrence 
of  the  will  of  him  through  whose  agency  it  occurs. 

45.  An  inevitable  accident  is  one  which  occurs  without  any  le- 
gal wrong  by  any  person.  An  inevitable  accident  never  results 
in  legal  liability  except  in  cases  of  insurance.  Accidents  not  in- 
evitable, which  result  in  hurt  to  him  against  whom  the  legal 
wrong  is  committed  always  render  the  wrongdoer  responsible. 

Legal  Rights  and  Duties. 

46.  Rightness,  propriety,  is  conformity  to  authoritative  stand- 
ard. 

47.  Right  and  duty  are  correlative. 

48.  The  sanction  of  law  is  necessary  to  the  practical  enjoyment 
of  legal  right. 

49.  A  legal  right  is  a  power,  claim,  interest,  or  advantage  which 
one  or  more  persons  enjoy  under  the  protection  of  the  law,  se- 
cured to  him  or  them  by  the  sovereign  by  giving  to  him  or  them 
capacity  to  control  by  law  the  conduct  of  others  with  reference 
thereto. 


INTRODUCTORY.  » 

50.  Legal  duty  is  subjection  to  a  correlative  legal  right;  that 
is,  the  necessity  laid  on  the  person  or  persons  owing  the  duty  to 
respect  and  leave  inviolate  the  correlative  legal  right  existing  in 
the  person  or  persons  to  whom  the  legal  duty  is  due. 

51.  Legal  obligation  results  from  the  sovereign's  recognition  of 
a  legal  right  and  its  undertaking  to  protect  the  same  by  enforcing 
the  correlative  legal  duty. 

52.  The  sovereign,  as  such,  has  rights  and  owes  duties  of  a  pub- 
lic nature.  These  rights  are  protected  by  criminal  law.  The  sov- 
ereign may  also  have  rights  of  a  private  nature,  as  rights  of  prop- 
erty, rights  under  contract,  etc.  These  are  governed  by  the  prin- 
ciples of  civil  law,  limited  in  their  enforcement  by  the  immunity 
of  the  sovereign  from  suit  except  by  its  own  consent. 

53.  Every  man  has  legal  rights  in  his  own  personality.  Most  of 
these  are  inalienable.  Some  of  them  may  be  alienated.  Many  are 
protected  by  constitutional  provisions  and  bills  of  rights  and  are 
beyond  the  power  of  government.  These  rights  extend  to  and  in- 
clude capacities,  advantages  and  privileges,  secured  by  the  pro- 
tection of  one 's  body  fully,  of  one 's  reputation  from  all  unlawful 
interference,  of  one's  mind  partially,  and  of  one's  moral  or  spir- 
itual natufe  in  a  still  more  limited  degree. 

54.  Every  person  may  have  and  enjoy  legal  rights  in  things. 
These  are,  in  almost  all  instances,  alienable,  though  the  methods 
by  which  this  may  be  done  are  under  governmental  control.  Some 
of  these  rights  are  protected  by  constitutional  provisions  and  are, 
hence,  beyond  the  power  of  the  government  to  modify  or  interfere 
with,  except  in  the  manner  and  to  the  extent  permitted  in  the  con- 
stitution. 

55.  This  right  in  things  is  called  ownership  or  estate.  In  its 
completeness,  it  consists  of  five  elements,  the  right  to  possess,  to 
use,  to  derive  benefit  from,  to  modify  or  destroy  and  to  transfer. 

When  all  these  combine,  the  estate  is  called  general  ownership. 
When  some  of  them  less  than  all  or  all  of  them  to  a  limited  extent 
exist,  it  is  called  special  ownership. 

56.  Persons  may  have  and  enjoy  legal  rights  in  other  persons. 
Such  rights  are  limited  by  the  constitutional  provisions  against 
slavery;  and,  it  is  sometimes  claimed,  are  still  further  restricted 
by  the  spirit  and  genius  of  our  government.  These  rights  are  not 
called  ownership,  but  are  in  many  respects  analogous  to  it.  They 
consist  in  the  right  of  one  person  to  control,  use  or  profit  by  an- 


10  AMERICAN   ELEMENTARY   LAW. 

other  in  limited  ways  and  for  limited  purposes.  Such  is  the  right 
a  parent  has  to  control  a  child  or  to  receive  his  wages,  or  the  right 
of  a  master  to  direct  and  appropriate  benefits  from  the  services  of 
his  servant. 

57.  Every  person  may  have  legal  rights  against  other  persons. 
These  are  limited  by  constitutional  provisions  forbidding  impris- 
onment for  debt  and  exempting  designated  property  from  execu- 
tion. These  are  specific  claims  one  person  has  against  another 
designated  person  or  persons.  In  a  majority  of  instances  they  are 
based  upon  contract. 

58.  In  every  government  there  must  be  some  person  or  persons 
who  enjoy  political  rights  or  privileges.  These  are  not  inherent 
in  any  particular  individual  as  such,  but  are  conferred  by  sover- 
eignty upon  such  individuals  and  under  such  limitations  as  it  sees 
fit.  In  our  American  institutions  some  of  these  are  protected  by 
constitutional  provisions. 

59.  For  the  violation  of  every  substantive  right,  the  law  pro- 
vides a  remedy.    This  right  to  remedy  is  called  a  remedial  right. 

The  Creation,  Modification  and  Termination  of  Legal  Bights  and 
Duties. 

60.  The  respective  legal  rights  and  duties  of  persons,  as  in- 
volved in  criminal  and  tort  law,  are  fixed  by  the  sovereign,  irre- 
spective of  the  consent  of  the  persons  immediately  concerned; 
that  is,  in  these  two  branches  of  the  law,  certain  legal  rights  and 
duties  are  prescribed  as  incident  to  certain  conditions  or  relations, 
and  all  persons  who  come  within  these  conditions  or  relations  are 
subject  to  the  prescribed  rules  as  to  such  rights  and  duties,  with- 
out reference  to  their  assent  to  or  disagreement  from  same. 

61.  The  sovereign  recognizes  the  right  of  persons  in  many  re- 
gards to  modify  existing  rights  and  duties  and  to  create  new  ones 
by  agreement. 

62.  Agreement  is  the  meeting  of  two  or  more  minds.  There 
must  be  a  common  understanding  of  the  facts  and  the  same  will 
concerning  them. 

63.  In  order  for  unperformed  agreements  to  create,  change,  or 
destroy  legal  rights,  they  must  be  genuine,  between  legally  com- 
petent parties,  for  lawful  purpose,  based  upon  valuable  consider- 
ation, and  evidenced  in  proper  form. 


INTRODUCTORY.  11 

64.  Agreements  possessing  the  foregoing  requisites  are  called 
contracts,  and  the  rules  governing  them  constitute  contract  law. 

65.  Agreements  non-en  forcible  in  themselves,  because  they  lack 
some  one  or  more  of  the  elements  of  contract,  but  which  have  been 
fully  performed  by  both  parties  as  originally  contemplated,  will 
be  recognized  and  upheld  as  sufficient  basis  for  change  of  legal 
rights  always  as  between  the  parties  to  the  agreement  and  usually 
as  against  all  persons. 

66.  Agreements  not  forbidden  by  good  morals  or  law,  but  which 
are  defective  simply  by  reason  of  want  of  capacity  in  one  or  more 
of  the  parties  thereto,  will  not  be  made  the  means  of  working  in- 
justice, and  if  they  have  been  partially  performed  by  either 
party,  the  other  will  be  compelled  either  to  perform  his  part  or 
restore  the  performing  party  to  his  former  condition.  The  state- 
ment with  reference  to  restitution  must  be  qualified  in  case  of  in- 
fants. If  an  infant  has  made  an  agreement  and  received  advan- 
tage under  it  and  consumed  that  advantage  during  his  minority, 
his  right  to  set  aside  the  agreement  can  not  be  defeated  by  his  fail- 
ure to  restore. 

67.  Agreements  for  the  conveyance  of  real  property  having  all 
the  other  elements  of  contract,  but  defective  in  form,  and  which 
have  been  fully  performed  by  the  purchaser  and  performed  by 
the  seller  to  the  extent  of  placing  the  purchaser  in  possession,  will 
be  enforced  against  the  seller  if  the  purchaser  has  improved  the 
property. 

68.  Legal  rights  and  duties  may  also  be  created,  modified  or  lost 
by  conduct  not  constituting  contract.  Such  conduct  may  be  either 
affirmative  or  negative.  Before  conduct  can  have  such  effect,  this 
effect  must  have  been  antecedently  prescribed  by  some  positive 
rule  of  law,  or  the  conduct  must  be  such  as  to  render  it  manifestly 
unjust  not  to  follow  it  with  such  consequences. 

69.  When  one  person  has  by  conduct,  affirmative  or  negative, 
created  in  the  mind  of  another  a  reasonable  belief  that  a  certain 
fact  or  facts  are  true,  and  has  thus  induced  the  person  deceived  to 
act  on  such  belief  in  such  way  that  it  would  work  injury  to  him 
to  permit  the  other  to  deny  his  former  representations  or  state- 
ments, the  latter  is  estopped  from  so  doing  and  the  rights  of  the 
parties,  as  to  this  matter,  must  be  determined  as  if  the  representa- 
tions were  true. 

70.  When  a  person  having  a  right  shall  fail,  for  the  length  of 


12  AMERICAN   ELEMENTARY   LAW. 

time  prescribed  by  law,  to  assert  the  same  against  another  who  is 
unlawfully  depriving  him  of  its  benefits,  his  right  to  enforce 
it  against  the  party  so  holding  adversely  is  lost. 

71.  If  one  person  gives  to  another  permission  to  do  an  act  or  a 
series  of  acts  otherwise  invasive  of  the  rights  of  the  former,  but 
not  contrary  to  law  or  good  morals,  such  permission  may  be  re- 
voked at  any  time,  but  will  still  be  good  as  a  defense  for  conduct 
committed  under  it. 

72.  Fraud  is  deception  resulting  in  unfair  disadvantage  to  the 
deceived. 

73.  Fraud  vitiates  all  transactions  into  which  it  enters,  so  far 
as  the  defrauded  party  is  concerned.  The  party  guilty  of  the 
fraud  can  not  avail  himself  of  it. 

74.  From  a  violation  of  the  law  no  cause  of  action  arises  in  be- 
half of  the  wrongdoer. 

75.  From  every  violation  of  law  resulting  directly  in  injury  to 
the  legal  rights  of  another  a  cause  of  action  arises  in  behalf  of  the 
injured  person  against  the  wrongdoer.    This  is  a  remedial  right. 

76.  Ignorance  of  the  law  excuses  no  one  for  its  violation. 

77.  Misrepresentation  of  law,  made  with  intent  to  deceive,  will 
be  considered  in  behalf  of  the  person  deceived  so  far  as  the  rights 
of  the  deceiver  are  concerned,  if  the  deceived  had  the  right  to  look 
to  the  deceiver  for  information. 

78.  In  criminal  law,  ignorance  of  fact  not  due  to  negligence 
excuses  if  the  act  under  investigation  be  such  that  it  would  have 
been  lawful  had  the  fact  been  as  it  was  assumed  to  be. 

79.  Mutual  mistake  of  fact  as  to-  a  material  matter  inducing 
agreement  will  avoid  the  agreement.  Unilaterial  mistake  of  fact 
will  not  of  itself  ordinarily  prevent  or  avoid  contract. 

80.  Mistake  of  fact  will  not  usually  excuse  in  tort  law,  but  in 
some  instances  it  will.  The  line  of  separation  is  not  clearly  drawn 

81.  The  law  permits  a  transfer  or  assignment  of  rights  which 
do  not  grow  out  of  or  pertain  to  special  or  confidential  relations. 
Such  assignments  are  effective  without  the  consent  of  the  person 
owing  the  correlative  duty.  If  the  right  grow  out  of  or  involve 
special  or  confidential  relation,  it  can  not  be  assigned  without  the 
consent  of  the  person  with  whom  such  relation  is  sustained.  If 
the  right  involve  public  interest  directly  and  appreciably,  it  can 
not  be  assigned  without  the  consent  of  the  sovereign,  obtained 
through  its  proper  representative. 


INTRODUCTORY.  13 

82.  The  law  permits  a  person  to  substitute  another  for  himself 
in  the  exercise  of  powers  and  rights  not  dependent  on  or  growing 
immediately  out  of  special  or  confidential  relations  and  which  do 
not  materially  affect  public  interests.  In  cases  of  confidential  re- 
lations, the  consent  of  the  person  with  whom  the  relation  is  sus- 
tained must  first  be  obtained,  and  in  the  case  of  public  interest,  if 
substitution  be  permitted  at  all,  the  consent  of  the  proper  repre- 
sentative of  the  public  must  first  be  obtained. 

Legal  Duties,  and  Consequence  of  Failure  to  Discharge. 

83.  The  law  does  not  permit  the  assignment  of  legal  duties 
without  the  consent  of  the  person  having  the  correlative  right. 

84.  Where  one  person  owes  a  duty  to  another  and  substitutes  a 
third  person  for  himself  in  its  discharge,  the  performance  by  the 
substitute  discharges  the  duty;  failure  to  perform  by  the 
substitute  leaves  the  duty  undischarged  and  binding  upon  him 
who  owed  it. 

85.  We  may  sum  up  the  last  two  statements  by  saying,  legal 
duties  can  not  be  assigned  by  the  person  obliged,  but  performance 
may  be  delegated  by  him. 

86.  When  a  legal  duty  due  to  a  third  person  rests  on  two  or 
more  persons  and  one  undertakes  to  discharge  such  duty  and  fails 
and  injury  to  the  person  having  the  correlative  right  directly  re- 
sults, both  are  responsible  for  such  injury  to  the  third  person.  As 
between  themselves,  the  one  undertaking  the  duty  is  responsible. 

87.  When  two  or  more  persons  owe  an  unconditional  legal  duty 
to  another,  but  one  is  bound  primarily  and  the  other  secondarily, 
failure  to  discharge  the  duty  renders  both  liable  to  the  person 
having  the  correlative  right.  The  one  primarily  bound,  if  he  dis- 
charge the  duty,  has  no  right  of  compensation  from  the  one  sec- 
ondarily bound ;  but  if  the  one  secondarily  bound  be  compelled  to 
discharge  the  duty,  he  can  compel  compensation  from  the  one  pri- 
marily bound. 

88.  Primary  Range  of  conduct.— Every  person  is  entitled  to  the 
benefits  arising  to  him  from  his  own  lawful  conduct  in  his  own  be- 
half. Every  normal  person  is  responsible  to  the  public  and  to  in- 
dividuals injured  for  injuries  resulting  directly  from  his  own 
unlawful  conduct.  These  benefits  and  responsibilities  in  the  aggre- 
gate constitute  the  primary  range  of  right  and  liability. 

89.  Secondary  Range  of  conduct. — The  secondary  range  of  con- 


14  AMERICAN  ELEMENTARY  LAW. 

duct  embraces  all  acts  and  omissions  by  one  person,  to  the  benefits 
of  which  another  person  is  entitled,  or  the  liabilities  for  which  at- 
tach  to  another  person. 

There  are  six  doctrines  in  law,  from  which  such  rights  and  lia- 
bilities may  arise,  viz.  Legal  identity,  Substitution,  Co-operation, 
Non-assignability  of  duty,  Express  Agreement,  and  in  rare  cases 
Statutory  Enactments,  declaring  such  liability. 

90.  Identity. — Upon  marriage  at  common  law,  the  husband  and 
wife  become  one  person  in  law,  and  the  husband  is  legally  respon- 
sible in  large  measure  for  the  conduct  of  the  wife.  The  ancient 
law  on  this  subject  is  much  modified  by  later  statutes. 

91.  Substitution. — Where  one  person  lawfully  substitutes  an- 
other for  himself  in  the  exercise  of  any  legal  power  or  right,  the 
conduct  of  the  substitute,  within  the  limits  of  the  substitution,  is, 
legally  speaking,  the  conduct  of  the  constituent,  or  one  appointing 
the  substitute. 

92.  Co-operation. — Whenever  persons  act  together  in  carrying 
on  a  common  lawful  enterprise,  their  rights  and  duties  as  between 
or  among  themselves  are  to  be  adjusted,  in  the  absence  of  agree- 
ment to  the  contrary,  on  the  basis  of  equality.  If  a  different  rule 
is  to  control,  it  must  be  shown  to  have  been  in  contemplation  of 
the  parties,  or  the  circumstances  must  be  such  that  justice 
strongly  requires  a  different  settlement. 

93.  Whenever  persons  act  together  in  carrying  on  a  com- 
mon lawful  enterprise  as  against  third  persons,  each  is  primarily 
entitled  to  demand  and  receive  all  the  advantages  and  each  is  pri- 
marily responsible  for  all  the  injuries  arising  therefrom.  These 
settlements  between  each  and  third  persons  may  be  readjusted  be- 
tween the  parties  themselves  according  to  the  real  intent  of  the 
persons  or,  in  the  absence  of  such  intent,  the  rules  of  justice  and 
right. 

94.  If  persons  act  together  in  an  unlawful  manner,  knowing  it 
to  be  such,  each  being  equally  guilty,  no  cause  of  action  can  arise 
therefrom  to  either,  either  against  his  co-actor  or  against  any 
other  person. 

95.  If  persons  act  together  in  any  matter  not  violative  of  the 
criminal  law  or  immoral  in  itself,  but  violative  of  the  legal 
rights  of  some  other  person,  such  actors  honestly  believing 
they  have  the  right  to  do  as  they  are  doing,  each  is  responsible  to 
the  party  whose  legal  right  has  been  violated  for  the  full  amount 


„  INTRODUCTOBT.  15 

of  the  injury  directly  resulting  to  him ;  subject,  in  rare  cases,  to 
be  offset  by  benefits  actually  received  by  him  from  such 
action.  In  such  cases,  as  between  themselves,  the  parties  are  en- 
titled to  and  subject  to  account  and  settlement  as  in  lawful  trans- 
actions. 

96.  When  persons  participate  in  an  unlawful  act  or  enterprise, 
one  knowing  the  illegality  and  the  other  not  having  such  informa- 
tion, as  to  injured  third  parties,  both  are  responsible.  As  between 
themselves,  the  one  having  the  guilty  knowledge  is  responsible  to 
the  other  if  he  were  the  cause  of  the  latter 's  action. 

97.  Non-assignability  of  Duty. — As  duties  are  non-assignable, 
if  a  person  who  owes  a  duty  delegates  to  another  the  performance 
of  the  duty,  this  does  not  discharge  the  obligation.  To  effect  such 
discharge  the  substitute  must  perform  the  duty. 

98.  Express  Agreement. — If  one  person  expressly  agrees  to  be 
responsible  for  the  conduct  of  another  in  proper  way  and  for  val- 
uable consideration,  the  agreement  is  binding. 

99.  In  a  few  instances,  statutes  declaring  that  one  person  shall 
be  responsible  for  what  another  does,  or  fails  to  do,  have  been  sus- 
stained,  on  grounds  of  public  policy. 

Legal  Causation. 

100.  For  an  act  or  omission  to  be  regarded  in  law  as  the  cause 
of  a  result,  such  result  must  either  have  been  intended  or  must  be 
direct.  A  result  is  direct  when  a  reasonably  prudent  person  in 
the  situation  of  him  whose  conduct  is  being  judged  would  have 
contemplated  such  result  as  natural  and  probable.  Consequences 
neither  intended  nor  direct  are  regarded  as  remote.  For  remote 
consequences  no  legal  liability  attaches. 

101.  Where  an  independent  responsible  agency  intervenes  be- 
tween the  wrongful  conduct  of  one  person  and  the  injury  of  an- 
other, he  who  is  guilty  of  the  wrongful  conduct  is  not  responsible 
for  the  damage  unless  he  foresaw  the  intervention  of  such  agency, 
or  should  have  foreseen  such  intervention  by  the  exercise  of  ordi- 
nary care  and  prudence. 

Remedy. 

102.  Every  member  of  a  political  community,  by  reason  of  his 
membership  therein,  loses  much  of  his  right  of  self-help.  The 
right  of  reasonable  protection  of  himself  and  others,  and  in  some 
cases,  of  his  property,  from  unlawful  violence  is  retained. 


16  AMERICAN   ELEMENTARY   LAW, 

The  right  of  redress  by  individual  action  for  wrongs  already  in- 
flicted is  practically  lost. 

103.  The  individual  being  thus  deprived  of  so  great  a  share  of 
his  right  of  self-help,  it  is  incumbent  on  sovereignty  to  afford  him 
adequate  remedy  through  its  governmental  agencies  for  all  viola- 
tion of  his  just  rights. 

104.  In  recognition  of  this  obligation  sovereignty  organizes  and 
maintains  a  system  of  tribunals  to  investigate  conduct  and  award 
remedies.    These  tribunals  are  known  as  courts. 

105.  The  final  adjudication  of  legal  rights  and  alleged  viola- 
tions of  them  and  the  denial  or  award  of  remedy  is  conclusive  and 
permanently  binding  on  all.  the  parties  to  the  litigation,  and 
those  holding  under  them.    This  is  the  rule  of  res  adjudicata. 

Fixedness. 

106.  It  is  essential  to  the  good  order  and  well  being  of  the  com- 
munity that  the  rules  of  conduct  which  are  to  be  observed  within 
the  community,  and  upon  which  legal  rights  and  duties  depend, 
should  be  known  and  reasonably  permanent.  Frequent  and  un- 
necessary change  is  hurtful,  hence  a  statute  once  passed  should 
not  be  lightly  set  aside  by  subsequent  legislation,  and  a  rule,  once 
announced  by  the  courts  as  a  part  of  the  Common  Law,  should  be 
firmly  adhered  to  and  followed  until  changed  by  the  Legislature 
or  until  it  is  demonstrable  that  it  is  in  conflict  with  the  present 
development  of  the  community.  This  latter  rule  is  known  as  the 
doctrine  of  stare  decisis. 

Growth. 

107.  Law  is  the  authoritative  expression  of  public  opinion  and 
conscience.  As  the  people  progress,  public  opinion  and  conscience 
change.  This  progress  most  frequently  finds  expression  through 
legislative  enactments.  It  also  expresses  itself  through  the  courts 
by  setting  aside  judicial  precedents  which  are  no  longer  applica- 
ble to  existing  conditions.  "The  reason  of  the  rule  having  failed, 
the  rule  itself  fails." 

Certitude. 

108.  The  forces  that  make  for  fixedness  and  those  which  make 
for  progress  are  in  perpetual  conflict,  which  must  continue  until 
the  established  rules  of  conduct  shall  be  absolutely  based  upon 
truth,  and  law  and  justice  shall  become  convertible  terms. 


INTRODUCTORY.  17 

Presumptions. 

109.  A  presumption  is  an  assumption  of  the  truth  of  a  fact  or 
facts  which  obviates  the  necessity  of  proof  to  sustain  it.  The  law 
makes  many  such  assumptions.  A  few  of  these  not  only  obviate 
the  necessity  of  proving  the  proposition  assumed,  but  are  pressed 
to  the  extent  that  no  controverting  testimony  can  be  received. 
These  are  called  conclusive  presumptions  and  are  binding  on  all 
whether  the  fact  assumed  be  in  reality  true  or  not. 

Other  presumptions  simply  relieve  from  the  necessity  of  prov- 
ing the  assumed  fact  and  deal  with  it  as  true  until  it  is  shown  by 
evidence  to  be  erroneous.  These  are  called  rebuttable  presump- 
tions. 

Legal  Fictions. 

110.  A  legal  fiction  is  a  conclusive  presumption  by  the  law  that 
a  fact  is  true  when  it  is  known  to  be  false. 

Legal  fictions  are  indulged  in  principally  in  matters  of  proced- 
ure to  offset  the  injustice  or  extreme  inconvenience  which  would 
result  in  particular  cases  from  some  arbitrary  rule  established  by 
law  because  conducive  to  justice  in  the  great  majority  of  instances 
coming  within  its  application. 
S 


PART  I. 


POLITICAL  POWER  AND  ORGANIZATION  OF  GOVERN- 
MENTS. 


CHAPTER  L 


POLITICAL  POWEB. 


Political  power  in  its  truest  sense  consists  of  the  combination  of 
moral  right  and  physical  capacity  to  exercise  general  control  over 
the  conduct  of  others  by  force. 

The  complete  conception  embraces  both  the  moral  right  and  the 
physical  capacity.  Moral  right  without  the  physical  capacity  to 
enforce  itself  would  lack  the  mandatory  element  necessary  in 
power.  Physical  power  without  moral  right  would  lack  the  ele- 
ment of  propriety  which  has  come  to  be  a  part  of  the  conception  of 
political  power  and  would  be  but  brute  force.  In  the  earlier  stages 
of  the  world's  development,  the  moral  element  was  little  regarded 
and  the  element  of  force  had  undue  emphasis.  The  result  was  or- 
ganization for  the  purpose  of  carrying  out  the  will  of  the  tyrant 
or  despot  rather  than  for  proper  political  purposes  according  to 
present  standards  of  government  and  governmental  authority. 

Whatever  differences  of  opinion  there  may  be  regarding  the 
foregoing  statements  as  to  the  ethical  element  in  political  power, 
it  is  conceded  on  all  hands  that  this  power  embraces  the  rightful 
authority  to  organize  and  operate  a  government  having  a  fixed  lo- 
cality, based  upon  physical  force,  capable  of  maintaining  itself 
against  both  external  and  internal  foes  and  of  exercising  control 
over  all  persons  and  things  within  its  territories. 

SOVEREIGNTY. 

A  certain  amount  of  political  power  constitutes  sovereignty. 
In  the  technical  use  of  the  term  it  embraces  all,  or  the  aggregate, 
of  such  powers,  and  it  is  customary  to  define  sovereignty  as  su- 
preme political  power.     This  aggregate  of  powers  certainly  is 


POLITICAL  POWER.  19 

sovereignty ;  but  the  question  remains,  may  not  some  combination 

of  such  powers  less  than  all  also  be  entitled  to  this  designation? 
Must  the  word  supreme  be  stressed  to  mean  the  highest  and  ulti- 
mate power  in  all  departments  of  political  activity,  or  may  it  be 
limited  to  the  highest  and  ultimate  authority  confined  to  certain 
political  activities  ?  To  ask  the  question  differently,  May  not  po- 
litical power  be  supreme  within  its  sphere  of  operation  although  it 
is  limited  as  to  the  matters  within  its  rightful  control  ? 

All  are  familiar  with  territorial  limits  to  sovereign  power.  No 
government  has  ever  extended  over  the  whole  world.  This  terri- 
torial limitation  in  no  wise  interferes  with  our  notions  of  sover- 
eignty. Why  is  limitation  as  to  the  subject  matter  over  which 
power  may  be  exercised  any  more  inconsistent  with  the  idea  of 
sovereignty  than  limitations  as  to  territory  ? 

The  student  of  American  institutions  must  practically  famil- 
iarize himself  with  the  use  of  the  term  in  this  second  meaning  and 
recognize  the  idea  of  divided  or  dual  sovereignty.  In  all  National 
and  interstate  matters,  the  highest  political  power  is  vested  in  the 
people  of  the  United  States,  and  they  have  final  and  supreme 
political  jurisdiction  over  these  matters ;  in  all  local  and  domestic 
matters,  the  highest  political  power  is  vested  in  the  people  of  the 
respective  States  in  severalty,  and  they  have  original,  final,  and 
supreme  political  jurisdiction  over  these  matters.  These  are  prac- 
tical and  not  merely  speculative  matters.  They  must  be  dealt 
with  by  the  different  officers  of  government  and  by  others  inter- 
ested in  them,  and  convenience  demands  that  some  term  be  ap- 
plied to  them ;  and  the  great  majority  of  legal  writers  employ  the 
words  sovereignty  and  sovereign  as  indicating  final,  and  ultimate 
political  authority  over  particular  subject  matter,  either  possessed 
originally  or  delegated  irrevocably.  This  is  but  following  the 
ordinary  method  of  giving. to  one  word  more  than  one  meaning, 
both  having  much  in  common,  yet  differing  in  some  essential 
ideas.  We  will  use  the  word  in  both  meanings  as  occasion  may 
require,  trusting  to  the  context  to  indicate  the  exact  sense  in  each 
instance. 

Investiture  of  Sovereignty. 

In  no  one  thing  do  political  communities -differ  more  than  in 
the  investiture  of  sovereignty.  In  theory,  at  least,  they  vary  from 
the  absolute  monarchy  on  the  one  hand,  where  all  power  is  con- 


20  AMERICAN   ELEMENTARY   LAW. 

centrated  without  check  or  limit  in  one  will,  to  pure  democracy 
on  the  other,  where  all  persons  subject  to  the  government  are 
theoretically  supposed  to  have  an  equal  voice  in  its  organization 
and  maintenance.  In  practice,  it  is  extremely  doubtful  whether 
either  of  these  extreme  types  has  ever  existed.  The  governments 
actually  existing  in  the  civilized  world  to-day  are  those  in  which 
sovereignty  is  vested  in  some  number  of  persons  more  than  one 
and  less  than  all. 

It  is  said  that  in  our  American  institutions  the  governments 
are  of  the  people,  for  the  people  and  by  the  people.  This  is 
not  technically  nor  literally  true.  Sovereign  power  in  democ- 
racies is  exercised  principally  in  the  right  of  suffrage  or  of  vot- 
ing.'  Political  power  in  America  in  this  setose  is  vested  in  and 
exercised  by  decidedly  less  than  half  of  the  persons  subject  to  its 
operation,  and  these  alone,  in  a  technical  or  literal  sense,  can  be 
called  sovereign.  In  actual  practice,  however,  the  protections 
afforded  and  rules  of  conduct  prescribed  are  largely  the  same 
as  if  all  persons  had  a  voice  in  the  government.  This  results 
from  the  wide  distribution  of  political  power  and  the  indissoluble 
bonds  that  bind  together  those  person  who  possess  it  and  those 
who  do  not,  their  kinship  and  community  of  interest  and  the 
similarity  of  their  views  of  life. 

Governments. 

In  political  communities  in  which  sovereignty  is  vested  in  a 
large  number  of  persons  it  is  impracticable  for  them  to  act  di- 
rectly and  personally  in  the  exercise  of  their  political  powers. 
It  becomes  necessary,  therefore,  for  them  to  devise  and  organize 
some  system  of  agencies  through  which  these  powers  may  be  put 
forth  and  these  functions  performed.  Such  a  system  of  agencies 
is  called  a  government. 

Sovereignty  in  the  institution  and  perpetuation  of  government 
acts  directly.  But  the  government  having  been  organized,  the 
ordinary  exercise  of  political  power  is  delegated  to  and  per- 
formed by  the  system  of  agencies  constituting  the  government. 

The  two  fundamental  purposes  of  sovereignty  in  organizing 
and  maintaining  government  are  the  perpetuation  of  the  sover- 
eign itself  and  the  just  and  proper  protection  of  the  people  sub- 
ject thereto.  In  order,  therefore,  for  the  government  to  be  ef- 
fective and  accomplish  the  end  of  its  creation  the  sovereign  or- 


POLITICAL  POWER.  21 

ganizing  it  must  keep  in  mind  and  provide  for  the  permanent 
continuation  of  its  own  existence  and  the  perpetuation  of  the 
governmental  agencies  through  which  it  is  to  act.  We,  therefore, 
find  in  all  the  schemes  of  government  worthy  of  the  name  there 
are  fixed  plans  and  rules  by  which  the  fundamental,  sovereign 
powers  shall  be  exercised  directly  by  the  sovereign  so  far  as  this 
is  essential  to  its  own  existence  and  well  being,  and  also  by  which 
the  governmental  agencies  shall  be  perpetuated  and  the  bodies 
or  persons  through  whom  their  functions  are  discharged  shall  be 
renewed  from  time  to  time. 

The  powers  and  duties  of  sovereignty  must  also  be  distributed 
among  the  different  governmental  agencies  and  the  manner  in 
which  these  powers  and  functions  are  to  be  exercised  must  be 
outlined. 

In  those  communities  in  which  sovereignty  is  lodged  in  the 
people  it  is  customary  for  the  people,  in  creating  their  govern- 
ments, to  prescribe  fixed  limits  upon  the  powers  conferred  upon 
their  agents  and  upon  the  exercise  of  such  powers  in  many  im- 
portant respects. 

The  organization  of  a  popular  government,  therefore,  involves 
the  ordaining  of  fundamental  laws  of  four  different  classes: 

(1)  Creative,  or  those  which  call  the  government  into  being. 

(2)  Perpetuative,  or  those  which  provide  for  the  perpetual 
existence  of  the  sovereign  and  of  the  governmental  agencies  cre- 
ated by  it. 

(3)  Functional,  or  those  which  prescribe  the  powers  and  du- 
ties of  each  and  all  of  the  governmental  agencies. 

(4)  Restrictive,  or  those  which  limit  the  powers  delegated  and 
the  manner  of  their  exercise. 

As  the  function  of  sovereignty  is  to  exercise  political  control 
and  the  governmental  agencies  organized  are  to  enable  it  to  dis- 
charge these  functions,  and  as  control  involves  the  exercise  of 
will  by  the  dominant  party  and  its  enunciation  in  rules  of  con- 
duct for  the  subject  party,  the  application  of  these  rules  to  such 
conduct  or  the  judging  of  such  conduct  by  such  rules  and  the 
enforcement  or  execution  of  the  dominant  will,  we  find  that  both 
in  sovereignty  and  in  organized  government  there  are  three 
phases  of  power. 

From  the  point  of  view  of  sovereignty  these  three  phases  of 
power  are: 


22  AMERICAN   ELEMENTARY  LAW. 

(1)  The  determinative;  that  is,  the  power  to  will  and  to  de- 
clare the  result  for  the  control  of  those  subject  to  the  sovereign. 

(2)  Applicatory;  that  is,  the  power  to  apply  the  rules  thus 
established  to  the  conduct  of  those  subject  thereto  and  to  an- 
nounce the  results. 

(3)  Executive;  that  is,  the  power  to  carry  into  effect  the  will 
of  the  sovereign  as  set  out  in  the  announced  rules  of  conduct. 

In  governments  these  three  phases  of  power  are  called  re- 
spectively : 

(1)  The  legislative  power;  that  is,  the  power  to  make  and  de- 
clare laws. 

(2)  The  judicial  power;  that  is,  the  power  to  investigate  the 
conduct  of  individuals  and  apply  the  law  thereto. 

(3)  The  executive  power;  that  is,  the  power  to  carry  out  and 
enforce  the  law. 

By  the  exercise  of  these  powers  singly  or  in  combination  sover- 
eignty through  government  maintains  itself  and  discharges  all 
its  functions.  Among  these  functions,  the  fundamental  one  is 
self-preservation.  Hence  governments  must  be  so  organized  as 
to  enable  them  to  successfully  defend  themselves  against  attacks 
from  outside  enemies  and  also  to  suppress  internal  disorders. 

Each  sovereign  should  also  carry  on  friendly  intercourse  with 
other  sovereigns.  Provision  must  be  made  for  this  in  establish- 
ing government. 

Sovereignty  must  also  be  prepared  to  make  laws  for  the  gov- 
ernment of  those  subject  to  it  and  to  apply  and  execute  these 
laws,  hence,  in  creating  and  maintaining  the  agencies  through 
which  it  acts,  must  provide  for  this  also. 

If  the  territory  occupied  by  the  sovereign  is  large  it  is  obvious 
that  the  public  good  and  convenience  will  be  promoted  by  sub- 
dividing this  territory  for  certain  governmental  purposes  and 
localizing  the  agencies  through  which  sovereignty  acts.  This 
must  also  be  provided  for.  The  practical  exercise  of  this  power 
of  subdivision  results  in  the  creation  of  counties,  cities  and  towns, 
and  various  political  districts  of  different  kinds.  Such  subdi- 
vision is  not  a  process  of  political  disintegration  by  whieh  sov- 
ereignty loses  control  and  ultimate  power  over  these  several  dis- 
tricts. It  is  only  a  method  by  which  the  sovereign  power  of  the 
whole  political  community  may  be  exercised  and  applied  in  the 


POLITICAL  POWER.  23 

different  localities  throughout  the  territory  of  the  sovereign  more 
conveniently,  cheaply,  and  effectively  by  the  use  of  local  agencies. 

Raising  Revenue. 

Governments  can  not  be  maintained  without  expense,  and  hence 
in  their  organization  provision  must  be  made  for  raising  revenue. 
Ordinarily,  this  is  done  by  taxes  of  different  kinds  and  by  import 
duties.  In  times  of  war,  in  extreme  emergencies,  other  and  more 
stringent  methods  are  employed.  It  is  a  recognized  rule  of  gov- 
ernment that  taxes  should  be  as  nearly  uniform  as  can  practically 
be  made,  but  no  perfectly  just  scheme  of  taxation  has  ever  been 
devised.  All  property  within  the  State  government,  except  such 
as  may  constitute  directly  or  indirectly  agencies  by  which  the 
Federal  government  seeks  to  maintain  itself,  is  subject  to  taxa- 
tion. The  right  to  levy  import  duties  is  practically  limited  to  the 
Federal  government. 

Eminent  Domain. 

As  the  needs  and  safety  of  the  public  are  paramount  to  those  of 
any  member  or  members  of  it,  sovereignty  always  reserves  the 
right  to  reclaim  and  apply  to  public  use  such  property  belonging 
to  individuals  as  it,  the  sovereign,  shall  deem  necessary  to  use  for 
the  public  safety  or  welfare,  limiting  the  exercise  of  such  power 
by  its  governmental  agencies  by  such  safeguards  as,  in  its  judg- 
ment, are- proper.  This  power  of  reclaiming  private  property 
and  applying  it  to  public  use  is  called  the  power  of  eminent 
domain. 

Police  Power. 

The  sovereign  is  also  charged  with  the  duty  of  caring  for  the 
public  safety,  health  and  morals,  and  always  reserves  to  itself 
the  right  so  to  control  and  regulate  the  conduct  and  affairs  of  in- 
dividuals as  shall  be  necessary  or  expedient  to  prevent  any  seri- 
ous injury  to  the  public  in  either  of  these  regards.  This  authority 
is  called  the  police  power. 

It  is  necessarily  vague  and  difficult  of  definition  or  even  of 
description.  It  can  not  be  parted  with  even  by  agreement  made 
by  the  people  themselves,  as  in  a  constitutional  provision,  or 
through  their  agents,  as  by  some  public  officer;  but  the  power  re- 
mains in  the  sovereign  and  may  always  be  exercised  when  the 


24  AMERICAN   ELEMENTARY   LAW. 

public  good  requires.  It  is  in  the  exercise  of  this  power  that  we 
find  the  best  index  of  the  advance  in  public  intelligence  and 
morals.  Practices  which,  at  one  time,  may  be  deemed  proper,  by 
reason  of  advance  in  the  thought  and  conscience  of  the  people, 
may  subsequently  be  recognized  as  improper  and  subversive  of 
the  public  good.  In  such  instances  antecedent  permission  of  the 
unrecognized  evil  or  even  actual  participation  in  it  will  not  pre- 
vent or  estop  the  sovereign  from  its  suppression  when  the  ad- 
vanced public  opinion  and  conscience  shall  so  demand. 

This  is  most  forcibly  illustrated  in  the  Mississippi  lottery  case. 
For  a  consideration  paid,  the  lottery  company  had  procured  a 
charter  to  maintain  its  lottery  within  the  State  of  Mississippi  for 
an  unlimited  period  of  time,  the  permission  being  given  by  stat- 
ute passed  in  pursuance  to  a  constitutional  provision  expressly 
authorizing  it.  The  company  organized  and  conducted  its  busi- 
ness strictly  within  the  terms  of  the  agreement  and  paid  to  the 
State  all  that  it  promised  to  pay.  Subsequently,  the  Legislature 
repealed  the  law  authorizing  the  company,  and  declared  the  busi- 
ness unlawful.  The  company  resisted  its  disorganization,  on  the 
ground  that  the  previous  constitutional  action  and  statute  consti- 
tuting its  charter  were  contracts  within  the  protection  of  the 
Constitution  of  the  United  States.  The  case  went  to  the  Supreme 
Court  of  the  United  States,  and  it  was  there  held  that,  although 
these  several  acts  possessed  every  essential  of  contract  so  far  as 
form,  parties,  meeting  of  the  minds  and  consideration"  went,  still 
the  agreement  was  not  a  contract,  because  its  subject  matter  was 
immoral  and  that  it  was  beyond  the  power  of  the  people  of  the 
State  or  the  Legislature  of  the  State  to  bind  themselves  to  submit 
to  immoral  practices  and  the  perpetration  of  immoral  schemes. 
The  company  was  disorganized  and  compelled  to  quit  business. 


CHAPTER  IL 

ORGANIZATION  OP  GOVERNMENTS  IN  THE  TERRITORY  OF  THE  UNITED 

STATES. 

Political  Organizations  Considered  Theoretically. 

As  preliminary  to  the  discussion  of  this  subject  practically  it 
is  essential  that  we  get  in  mind  at  least  three  kinds  of  political 
organizations : 

(1)  Unitary  States. 

(2)  Confederations. 

(3)  Federal  States. 

Unitary  States. 

These  are  States  in  which  all  sovereign  power  is  vested  in  one 
body  of  people  and  exercised  through  one  government.  In  them 
there  is  no  division  of  sovereign  power  or  of  the  matters  or  sub- 
jects over  which  political  power  is  exercised.  There  is  one  sov- 
ereign, and  one  government  through  which  the  one  sovereign  ex- 
ercises all  of  its  functions.  In  it  the  same  jurisdiction  applies  to 
national  and  domestic  affairs.  The  same  power  that  in  time  of 
peace  sustains  and  carries  on  diplomatic  relations  with  other  na- 
tions, and  which  when  occasion  arises,  wages  war,  extends  to  and 
controls  the  most  minute  and  least  important  of  all  the  domestic 
affairs  of  the  community  and  the  private  rights  of  individuals. 
The  sovereign  power  in  such  a  State  is  necessarily  undelegated 
and  the  government  is  necessarily  single. 

If  in  such  a  State  sovereignty  be  vested  in  the  people,  the  gov- 
ernment thus  organized  is  the  simplest  form  of  representative 
government.  There  could  be  no  opportunity  for  conflict  between 
different  sovereignties  as  to  which  had  jurisdiction  over  any  mat- 
ter. The  one  sovereign  would  reign  supreme  through  the  whole 
sphere  of  political  activity. 

Perhaps  the  Republic  of  Texas  was  the  most  complete  and  most 
nearly  perfect  example  of  such  a  State  and  such  a  govern- 
ment that  ever  existed  within  the  territory  now  covered  by  the 
United  States.    In  1836  the  people  of  Texas  asserted  their  pri- 


26  AMERICAN   ELEMENTARY  LAW. 

mary  right  of  sovereignty  and  declared  Texas  a  free  and  inde- 
pendent nation,  absolved  from  allegiance  to  any  other  political 
power.  They  made  this  declaration  good  on  the  battlefield  and 
shortly  thereafter  adopted  a  written  constitution  creating  the 
government  known  as  the  Republic  of  Texas.  This  constitution 
provided  for  and  organized  a  government  fully  equipped  to  deal 
with  all  political  and  legal  questions  from  the  least  to  the  great- 
est. A  careful  study  of  this  constitution  will  give  a  thorough  and 
satisfactory  idea  of  a  Unitary  State  in  all  its  various  aspects. 

Confederations. 

Confederations  are  leagues  for  specified  purposes  entered 
into  by  then  existing  sovereigns  and  governments.  They 
are  in  sharp  contrast  with  Unitary  States.  They  have  no 
inherent  or  primary  power.  They  do  not  result  from  the  action 
of  any  one  sovereign  nor  exist  by  reason  of  any  single  sovereign 
will.  They  are  created  by  the  mutual  agreement  of  a  number  of 
sovereigns,  each  coming  into  the  compact  of  its  own  will  and  each 
having  the  power  to  withdraw  therefrom  at  pleasure.  The  com- 
pact in  which  the  confederation  originates  is,  to  all  intents  and 
purposes  a  treaty  among  sovereign  contracting  powers.  Morally 
it  may  be  binding,  but  as  each  member  to  it  is  sovereign  there  is 
no  common  arbiter  who  can  enforce  its  terms  or  compel  the  ob- 
servance of  its  obligations. 

If  the  plan  of  confederation  contemplates  a  tribunal  for  the  ex- 
ercise of  so-called  legislative  powers  such  an  assembly  would  be  a 
conclave  of  ambassadors  from  separate  sovereignties  whose  action 
must  ultimately  be  referred  to  and  accepted  by  such  sovereigns, 
rather  than  a  body  of  legislators  coming  from  and  representing 
the  people  of  different  portions  of  one  sovereignty  whose  action 
would  be  directly  binding  throughout  the  whole  territory. 

A  confederation  does  not  deal  directly  with  the  individual  cit- 
izens of  the  several  States  composing  it.  It  has  no  direct  power 
over  them.  Its  authority  and  action  are  limited  to  the  States  en- 
tering into  the  league.  It  deals  directly  with  them  and  its  action 
affects  the  individual  only  indirectly  through  the  State  to  which 
he  owes  allegiance. 

Federal  States. 

A  Federal  State  resembles  each  of  the  foregoing  in  some 
respects  and  differs  from  each  in  other  respects.    Unlike  a  uni- 


ORGANIZATION  OF  GOVERNMENT.  27 

tary  State,  its  power  is  not  primary  and  inherent,  but  is  delegated 
by  and  received  from  pre-existing  unitary  States.  In  this  it  re- 
sembles a  confederation. 

It  differs  sharply  from  the  confederation  in  the  nature  and  ex- 
tent of  the  giving  over  of  the  sovereign  powers  delegated  to  it.  In 
a  Federal  State  this  delegation  of  power  is  absolute  and  irrevoca- 
ble. In  a  Confederation  each  member  of  the  league  has  the  power 
to  withdraw  at  will  and  in  this  way  to  rehabilitate  itself  in  the 
exercise  of  all  of  its  powers  of  sovereignty.  In  a  Federal  State 
this  is  not  true.  The  delegation  once  made,  the  State  making  the 
delegation  is  permanently  divested  of  the  sovereign  powers  dele- 
gated by  it  and  cannot  thereafter  reclaim  them.  The  distinction 
is  this:  In  forming  a  Confederation,  the  several  Unitary  States 
entering  into  the  compact  delegate  to  the  Confederation,  not  their 
sovereign  powers  or  any  of  them,  but  simply  the  right  to  exercise 
certain  of  these  powers  for  specified  purposes,  while  in  creating  a 
Federal  State,  the  several  Unitary  States  give  over  to  the  Federal 
State  specified  prerogatives  and  attributes  of  sovereignty,  thus 
passing,  not  simply  the  power  of  exercise,  but  the  specified  sover- 
eign power  itself.  Strictly  speaking,  a  Confederation  has  no  sov- 
ereign power.  A  Federal  State  does  have  sovereign  power  to 
the  extent,  but  only  to  the  extent  that  such  power  has  been  dele- 
gated and  given  over  to  it  by  the  several  Unitary  States  forming 
the  Federal  Government. 

In  creating  a  Federal  State  or  government,  the  Unitary  States 
entering  into  it  do  not  part  with  all  of  their  sovereign  preroga- 
tives but  only  with  those  given  over  to  the  Federal  State  by  the 
instrument  creating  it.  As  to  all  powers  not  so  delegated  the  sev- 
eral Unitary  States  retain  unimpaired  sovereignty  unlimited  in 
any  way  except  by  the  grant  of  power  made  to  the  Federal  State 
by  the  agreement  of  the  several  contracting  sovereigns. 

It  is  true  that  if  any  particular  Federal  State  be  granted  large 
sovereign  prerogatives  and  shall  become  strong  in  the  exercise  of 
its  powers,  it  may  thus  acquire  physical  force  superior  to  that  of 
any  one  of  the  States  entering  into  its  organization,  and  this  being 
true  from  the  point  of  view  of  physical  force,  the  Federal  State 
might  be  superior  to,  that  is,  stronger  than,  any  one  of  its  mem- 
bers. But  ethical  notions  have  largely  entered  into  the  modern 
idea  of  government  and,  these  notions  impose  binding  limitations 
upon  the  exercise  of  physical  force.     So  we  must  say  that  the 


28  AMERICAN   ELEMENTARY   LAW. 

Federal  State  might  become  physically  and  practically  able 
to  disregard  the  compact  among  the  several  States  which  gave  it 
being,  but  that  morally  it  is  bound  not  to  do  so,  and  legally  should 
not  do  so. 

"Within  the  sphere  of  its  political  authority  a  Federal  State  acts 
directly  upon  its  citizens  as  individuals  and  not  indirectly 
through  the  States.  This  is  in  sharp  contrast  with  the  impotency 
of  a  Confederation  in  this  respect. 

As  a  Federal  State  is  invested  with  sovereign  power  as  to  cer- 
tain matters,  and  is  practically  the  chosen  representative  of  all  of 
the  several  States  creating  it,  the  responsibility  of  preserving  and 
exercising  these  sovereign  prerogatives  rests  upon  it  and  it  must 
protect  them  to  the  extent  of  its  ability  from  attacks  ,by  other 
nations  and  against  encroachments  and  withdrawals  iby  the  sev- 
eral States.  By  entering  into  being  and  entering  upon  thesis- 
charge  of  the  functions  assigned  it,  it  becomes  the  agent  of  all  the 
States  constituting  it  to  carry  out  the  will  of  all  as  expressed  and 
embodied  in  the  creative  act,  and!it  is  its  solemn  duty  to  meet  this 
responsibility. 

It  is  apparent  that  the  conception  of  a  Federal  State  carries 
with  it  of  necessity  the  idea  of  dual  sovereignty,  that  is,  of  two 
sovereign  powers,  each  operating  within  •  the  same  territory  and 
upon  the  same  people  but  each  restricted  as  to  the  political  and 
legal  matters  over  which  it  has  jurisdiction.  To  deny  this  con- 
ception is  to  deny  the  possibility  of  the  existence  of  a  Federal 
State.  Where  the  line  of  separation  between  the  two  jurisdictions 
shall  be  depends,  necessarily,  upon  the  original  agreement  of  the 
Unitary  States  entering  into  the  Federation.  So  much  of  sover- 
eign power  and  prerogative  as  is  conferred  upon  the  Federal 
State  is  to  be  determined  by  a  fair  and  honest  interpretation  of 
the  instrument  evidencing  the  agreement  by  which  it  was  created; 
or,  speaking  in  the  terms  of  American  law,  by  the  proper  con- 
struction of  the  constitution  creating  the  Federal  Government. 

Another  important  matter  necessarily  arising  is  who  shall  in- 
terpret this  agreement.  This  in  turn  depends  upon  the  agree- 
ment itself. 

Government  in  the  United  States. 

Passing  from  the  theoretical  to  the  practical  we  find  that  in  the 
United  States  the  method  of  founding  or  organizing  governments 


ORGANIZATION   OF   GOVERNMENT.  29 

is  by  written  instalments  called  constitutions.  When  each  of  the 
original  colonies  was  founded  in  America,  it  had  some  sort  of  a 
written  charter  from  the  English  King  and  parliament  confer- 
ring upon  the  founders  such  governmental  authority  as  tbey  saw 
fit.  These  differed  widely  in  their  details  and  appreciably  in 
some  matters  of  more  importance ;  but  they  had  this  in  common : 
they  were  written  instruments  emanating  from  the  sovereign, 
conferring  political  power  and  authorizing  the  maintenance 
of  government. 

Under  these  several  instruments  the  respective  colonies  began 
their  political  life.  Each  was  separate  from  each  and  all  the 
others,  though  they  had  much  in  common.  The  people  sprang 
from  the  same  stock,  came  from  the  same  country,  spoke  the  same 
tongue,  and  had  years  of  common  experience  and  tradition.  Be- 
sides they  found  in  the  new  world  the  same  enemies,  difficulties, 
and  dangers.  These  gave  them  community  of  need  and  sympa- 
thies, and  as  time  passed  on  these  devedoped  into  a  community  of 
strength.  When  they  found  themselves  confronted  with  a  com- 
mon oppressor,  menacing  them  with  a  common  danger,  they  made 
common  cause  against  him  and  overthrew  him  for  the  com- 
mon good. 

In  declaring  independence  they  acted  together,  yet  each  for 
itself.  The  declaration  is  that  "These  United  Colonies  are,  and 
of  a  right  ought  to  be,  free  and  independent  States;  that  they  are 
absolved  from  all  allegiance  to  the  British  Crown  and  that 
all  political  connection  between  the  States  and  Great  Britain  is 
and  ought  to  be  totally  dissolved ;  and  that,  as  free  and  independ- 
ent States,  they  have  full  power  to  levy  war,  conclude  peace,  con- 
tract alliances,  establish  commerce,  and  do  all  other  acts  and 
things  which  independent  States  may  of  right  do." 

Before  the  adoption  of  this  declaration  several  of  the  States 
changed  their  charters  into  constitutions,  or  rather,  had  substi- 
tuted constitutions  adopted  by  themselves  for  the  charters  there 
tofore  granted  by  the  King  and  Parliament.  The  Second  Conti 
nental  Congress  advised  such  action  and  a  large  majority  of  the 
States  had  either  amended  their  charters  radically  so  as  to  make 
them  practically  constitutions  or  had  substituted  constitutions 
for  the  charters  before  the  adoption  of  the  Articles  of  Confedera- 
tion. It  is  thus  apparent  that  historically,  as  well  as  naturally 
and  logically,  the  political  autonomy  and  sovereignty  of  the  States 


30  AMERICAN  ELEMENTARY  LAW. 

existed  and  was  recognized  before  any  action  was  taken  to  bring 
the  States  into  any  sort  of  political  combination. 

The  Confederation. 

The  first  effort  at  political  union  among  the  States  resulted  in 
the  adoption  by  the  Second  Continental  Congress,  on  the  15th  of 
November,  1777,  of  the  "Articles  of  Confederation  and  Perpetual 
Union  between  the  States. ' '  This  congress  recognized  that  it  had 
no  power  whatever  to  bind  the  several  States  by  its  action  in  the 
premises.  It  therefore  proposed  that  these  Articles  be  adopted  by 
each  of  the  States  separately  and  should  become  operative  only 
after  such  adoption  by  all.  The  several  States  took  up  the  matter 
and  passed  favorably  upon  it  from  time  to  time.  It  was  ratified  by 
the  last  State,  Maryland,  on  March  1st,  1781. 

The  government  resulting  from  this  action,  if  the  combination 
was  strong  enough  to  be  called  a  government,  was  in  the  nature 
of  a  Confederation  or  League  between  independent  sovereignties. 
It  lacked  efficiency  and  was  incapable  of  any  decisive  action.  It 
had  not  sufficient  inherent  strength  to  hold  its  several  members 
together.  So  long  as  the  Revolutionary  War  continued  the  pres- 
sure from  external  foes  compelled  the  several  States  to  observe  in 
some  manner  the  action  of  the  Confederation.  As  soon  as  the  war 
was  over  and  this  outside  pressure  thus  withdrawn,  the  tendency 
in  each  State  was  to  emphasize  and  cultivate  its  local  interests, 
although  this  might  involve  injury  to  some  other  State  or  to  the 
country  at  large.  It  soon  became  apparent  that  the  Confederation 
was  too  weak  to  meet  the  demands  of  the  situation. 

United  States. 

This  confederacy  thus  proving  weak  and  unsatisfactory,  the 
perpetual  union  created  by  the  articles  referred  to  was  super- 
seded by  the  government  under  the  present  Constitution  of  the 
United  States.  This  Constitution  was  prepared  and  signed  by  the 
delegates  from  twelve  States  on  September  17,  1787,  and  submit- 
ted to  the  several  States  for  ratification,  with  the  provision  that 
"the  ratification  of  the  conventions  of  nine  States  shall  be  suffi- 
cient for  the  establishment  of  this  Constitution  between  the  States 
so  ratifying. ' '  This  Constitution  having  been  ratified  by  the  re- 
quisite number  of  States,  went  into  effect  on  the  first  "Wednesday, 
fourth  day  of  March,  1789.  By  it  the  present  government  was 
created  and  established. 


ORGANIZATION   OF   GOVERNMENT.  31 

The  purpose  of  its  creation,  as  recited  in  the  Preamble  to  the 
Constitution,  was  "to  form  a  more  perfect  union,  establish  jus- 
tice, insure  domestic  tranquillity,  provide  for  the  common  de- 
fense, promote  the  general  welfare,  and  secure  the  blessings  of 
liberty." 

In  order  to  accomplish  these  purposes,  the  framers  of  the  Con- 
stitution and  those  who  adopted  it  committed  to  the  government 
thus  created  all  national  and  interstate  matters  and  conferred 
upon  it  such  powers  as,  in  their  judgment,  were  proper  and  neces- 
sary to  enable  it  effectively  to  meet  the  ends  of  its  creation.  All 
powers  not  delegated  expressly,  or  by  proper  implication  from 
those  expressed  and  the  purposes  designed  to  be  accomplished, 
were  reserved  to  the  States  by  the  people.  The  grant  of  these 
powers  to  the  Federal  government  was,  ipso  facto,  a  surrender  of 
them  by  the  several  States,  so  that  we  have  a  division  of  political 
matters  between  the  Federal  and  State  governments.  Neither 
sovereign  and  neither  government  is  unlimited.  "We  find,  there- 
fore, that  the  Constitution  of  the  United  States  deals  only  with 
national  and  interstate  affairs,  and  the  constitutions  of  the  several 
States  only  with  internal  or  domestic  affairs. 

Constitutions.  . 

It  is  provided  in  the  Federal  Constitution  that  that  Constitu- 
tion, and  treaties  made  in  pursuance  thereof,  and  acts  of  Congress 
thereunder,  are  the  supreme  law  of  the  land.  The  constitutions 
of  the  several  States,  within  their  spheres  are  likewise  supreme. 
We  therefore  have  this  condition :  that  all  persons,  whether  offi- 
cers of  the  Federal  or  State  governments,  or  private  individuals, 
are  bound  to  obey  and  support  the  Constitution  of  the  United 
States  and  the  treaties  and  acts  of  Congress  that  conform  thereto, 
and  also  all  State  laws  within  the  sphere  of  State  action.  That  in 
case  of  conflict  between  the  Constitution  of  any  State  or  its  stat- 
utes and  the  Federal  Constitution,  the  latter  will  prevail,  and  all 
State  action  in  conflict  therewith  is  void.  That  the  actions  of  all 
State  officers,  executive,  legislative,  and  judicial,  must  also  con- 
form to  and  be  governed  by  the  Constitution  of  their  State ;  and 
if  such  action  violates  this  Constitution,  it  is  void  and  of  no  effect ; 
and  that  the  officers  of  each  government  are  bound  to  respect  and 
uphold  the  constitutions  and  laws  of  both,  within  their  respective 
jurisdictions. 


32  AMERICAN   ELEMENTARY   LAW. 

Constitutions,  being  the  direct  acts  of  sovereignty,  control  all 
acts  of  legislation  by  the  same  government  contrary  thereto;  and 
the  Constitution  of  the  United  States  renders  nugatory  and  void 
any  attempted  State  legislation  repugnant  to  it. 

Constitutions  are  delegations  of  power  by  the  people  ordaining 
them  to  the  several  agencies  created  by  them  and  to  the  several 
officers  provided  for  in  them.  This  statement  seems  to  be  correct 
although  it  contradicts  expressions  found  in  numerous  books,  to 
the  effect  that,  as  to  the  legislative  department,  State  constitu- 
tions are  limitations  of  power.  The  truth  seems  to  be  this :  no  one 
is  authorized  to  exercise  legislative  power  except  the  sovereign  it- 
self, or  those  to  whom  it  has  delegated  such  authority ;  but  a  gen- 
eral grant  of  such  power  carries  with  it  the  right  to  legislate  on 
any  subject  matter  within  the  jurisdiction  of  the  sovereign  mak- 
ing the  delegation;  and  if  power  to  legislate  on  any  particular 
matter  within  such  jurisdiction  is  desired  to  be  withheld,  this  in- 
tent must  be  specified  in  the  constitution. 

As  the  United  States  government  has  only  such  powers  as  are 
conferred  upon  it  by  the  Constitution,  the  subjects  upon  which 
Congress  may  legislate  must  be  set  out  in  the  Constitution 
expressly  or  by  proper  implication.  As  the  States  have  all  pow- 
ers not  conferred  upon  the  Federal  government,  a  general  grant 
of  legislative  power  to  a  State  legislature  carries  with  it  the  right 
to  legislate  on  all  subjects  within  State  jurisdiction  not  withheld 
from  them. 

Construction  of  Constitutions. 

As,  in  the  American  system,  constitutions  are  the  supreme  law 
of  the  land,  binding  on  all  governmental  agencies  created  there- 
by, all  officers  acting  thereunder  and  upon  private  citizens,  it 
necessarily  follows  that  most  important  questions  as  to  the  proper 
construction  and  application  of  these  constitutions  in  their  practi- 
cal working  effect,  and  as  to  the  respective  powers  and  duties  of 
the  several  departments  of  government  created  by  them,  must 
arise.  In  some  instances  it  is  expressly  stated  by  whom  the  nature 
and  extent  of  the  powers  conferred  are  to  be  determined;  but 
these  constitute  the  exceptions  and  not  the  rule. 

In  the  actual  administration  of  the  government,  the  powers 
conferred  upon  each  department  must  necessarily  be  determined 
primarily  by  it  and  its  officers ;  otherwise,  they  could  take  no  ae- 


ORGANIZATION  OP  GOVERNMENT.  33 

tion,  as  they  would  have  no  intelligent  guide  as  to  their  powers 
and  duty.  Serious  questions  often  arise  as  to  whether  or  not  the 
construction  thus  placed  upon  the  instrument  and  upon  statutes 
passed  under  it  is  conclusive  upon  all  other  departments  of  gov- 
ernment. The  answer,  in  most  instances,  must  be  determined  by 
the  general  spirit  and  scope  of  duty  imposed  upon  each  depart- 
ment and  officer,  rather  than  by  technical  rules  or  literal  and  ex- 
press provisions. 

These  questions  presented  practically  a  new  phase  of  govern- 
mental or  political  difficulty.  In  England,  there  is  no  written 
constitution  and  no  division,  express  or  exclusive,  of  the  powers 
of  government  among  different  departments.  Parliament  is  prac- 
tically supreme,  and  no  question  as  to  the  constitutionality  and 
validity  of  its  action  could  actually  arise.  If  it  did,  it  would  be 
decided  by  itself;  for,  under  the  English  system,  the  House  of 
Lords  is  the  court  of  last  resort,  so  that  Parliament  has  combined 
within  itself  the  ultimate  legislative  and  judicial  power. 

Under  the  Constitution  of  the  United  States,  the  question,  as 
an  original  proposition,  was  not  free  from  difficulty.  All  legisla- 
tive power  is  granted  to  Congress,  and  it  is  required  to  observe 
the  Constitution  in  the  exercise  of  this  power.  This  necessarily 
devolves  upon  Congress  and  its  several  members  the  responsibil- 
ity of  passing  upon  the  constitutionalty  of  any  proposed  meas- 
ure, and  makes  it  the  duty  of  each  member  to  oppose  and  of  the 
collective  body  to  reject  it  if  it  does  not  conform  to  the  Federal 
Constitution.  No  bill,  therefore,  can  become  a  law  unless,  in  the 
judgment  of  Congress,  it  conforms  to  the  Constitution.  Again, 
all  bills,  after  being  passed  by  Congress  before  becoming  laws  are 
required  to  be  presented  to  the  President,  as  the  chief  executive, 
and,  in  the  event  of  his  disapproval,  he  is  authorized  to  veto  the 
proposed  law ;  so  that,  having  passed  the  scrutiny  of  the  legisla- 
tive department,  the  bill  is  again  submitted  to  the  executive  de- 
partment before  it  can  be  promulgated  as  a  law  of  the  land. 

After  the  measure  has  gone  through  both  processes  and  is- de- 
clared operative,  rights,  or  supposed  rights,  arise  under  it  and  are 
asserted  in  the  courts;  and  the  question  then  arises:  Does  the  en- 
actment conform  to  or  contradict  the  Constitution?  The  courts 
and  judges  are  also  sworn  to  observe  the  Constitution  and  enforce 
it.  Can  this  oath  be  kept  if  the  judgment  of  the  legislative  and 
executive  departments  was  erroneous  and  that  which  they  had 
8 


34  AMERICAN   ELEMENTARY   LAW. 

promulgated  as  in  conformity  with  the  Constitution  is,  in  fact, 
violative  of  it,  unless  the  judiciary  have  the  power  to  review  the 
question  and  determine  for  itself  the  constitutionality  of  the 
measure?  These  questions  necessarily  arose  early  in  the  history 
of  the  government. 

One  of  the  clearest  and  most  interesting  discussions  of  the  sub- 
ject and  enunciations  by  the  Supreme  Court  of  the  United  States 
with  reference  thereto  is  found  in  the  case  of  Marbury  v.  Madison 
(1  Cranch,  137,  decided  in  1803),  in  which  the  Court,  speaking 
through  the  Chief  Justice,  used  the  following  language : 

"The  question,  whether  an  act  repugnant  to  the  Constitution 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting  to 
the  United  States ;  but,  happily,  not  of  intricacy  proportioned  to 
its  interest.  It  seems  only  necessary  to  recognize  certain  prin- 
ciples, supposed  to  have  been  long  and  well  established,  to  decide 
it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall 
most  conduce  to  their  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  The  exercise  of  this  original 
right  is  a  very  great  exertion ;  nor  can  it,  nor  ought  it,  to  be  fre- 
quently repeated.  The  principles,  therefore,  so  established,  are 
deemed  fundamental ;  and,  as  the  authority  from  which  they  pro- 
ceed is  supreme,  and  can  seldom  act,  they  are  designed  to  be  per- 
manent. This  original  and  supreme  will  organizes  the  govern- 
ment, and  assigns  to  different  departments  their  respective  pow- 
ers. It  may  either  stop  here,  or  establish  certain  limits  not  to  be 
transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  descrip- 
tion. The  powers  of  the  legislature  are  defined  and  limited ;  and 
that  those  limits  may  not  be  mistaken,  or  forgotten,  the  Constitu- 
tion is  written.  To  what  purpose  are  powers  limited,  and  to  what 
purpose  is  that  limitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be  restrained? 
The  distinction  between  a  government  of  limited  and  unlimited 
powers  is  abolished,  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed 
are  of  equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  Constitution  controls  any  legislative  act  repug- 


ORGANIZATION   OP   GOVERNMENT.  35 

nant  to  it;  or  that  the  legislature  may  alter  the  Constitution  by 
an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
Constitution  is  either  a  paramount  law,  unchangeable  by  ordi- 
nary means,  or  it  is  on  a  level  with  ordinary  legislative  acts,  and, 
like  other  acts,  is  alterable  when  the  legislature  shall  please  to 
alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  Constitution  is  not  law;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the  part 
of  the  people,  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  con- 
template them  as  forming  the  fundamental  and  paramount  law  of 
the  nation;  and,  consequently,  the  theory  of  every  such  govern- 
ment must  be  that  an  act  of  the  legislature,  repugnant  to  the  Con- 
stitution, is  void. 

This  theory  is  essentially  attached  to  a  written  constitution,  and 
is  consequently  to  be  considered  by  this  court  as  one  of  the  funda- 
mental principles  of  our  society.  It  is  not,  therefore,  to  be  lost 
sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  Constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts  and 
oblige  them  to  give  it  effect,  Or,  in  other  words,  though  it  be  not 
law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ?  This 
would  be  to  overthrow,  in  fact,  what  was  established  in  theory ; 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  in- 
sisted upon.  It  shall,  however,  receive  a  more  attentive  consider- 
ation. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  partic- 
ular cases  must,  of  necessity,  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So,  if  a  law  be  in  opposition  to  the  Constitution,  if  both  the  law 
and  the  Constitution  apply  to  a  particular  case  so  that  the  court 
must  decide  that  ease  conformably  to  the  law,  disregarding  the 
Constitution,  or  conformably  to  the  Constitution,  disregarding 
the  law,  the  court  must  determine  which  of  these  conflicting  rules 
governs  the  case.    This  is  of  very  essence  of  judicial  duty. 


36  AMERICAN   ELEMENTARY   LAW. 

If,  then,  the  courts  are  to  regard  the  Constitution,  and  the  Con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature,  the  con- 
stitution, and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution 
is  to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their  eyes  on 
the  Constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  according  to 
the  principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare  that,  if 
the  legislature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  such  express  prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature  a  practical  and  real  omnipo- 
tence, with  the  same  breath  which  professes  to  restrict  their  pow- 
ers within  narrow  limits.  It  is  prescribing  limits,  and  declaring 
that  those  limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  great- 
est improvement  on  political  institutions,  a  written  constitution, 
would  of  itself  be  sufficient,  in  America,  where  written  constitu- 
tions have  been  viewed  with  so  much  reverence,  for  rejecting  the 
construction.  But  the  peculiar  expressions  of  the  Constitution  of 
the  United  States  furnish  additional  arguments  in  favor  of  its  re- 
jection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  Constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power  to  say 
that,  in  using  it,  the  Constitution  should  not  be  looked  into? 
That  a  ease  arising  under  the  Constitution  should  be  decided 
without  examining  the  instrument  under  which  it  arises? 

This  is  too  extravagent  to  be  maintained. 

In  some  cases,  then,  the  Constitution  must  be  looked  into  by  the 
judges.  And,  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read  or  to  obey  ? 

There  are  many  other  parts  of  the  Constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  State."    Suppose  a  duty  on  the  export  of  cot- 


ORGANIZATION   OF   GOVERNMENT.  37 

ton,  of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it. 
Ought  judgment  to  be  rendered  in  such  a  case?  Ought  the  judges 
to  close  their  eyes  on  the  Constitution,  and  only  see  the  law? 

The  Constitution  declares  "that  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should  be 
prosecuted  under  it,  must  the  court  condemn  to  death  those  vic- 
tims whom  the  Constitution  endeavors  to  preserve  ? 

"No  person,"  says  the  Constitution,  "shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court." 

Here  the  language  of  the  Constitution  is  addressed  especially 
to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence 
not  to  be  departed  from.  If  the  legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of  court,  suffi- 
eient  for  conviction,  must .  the  constitutional  principle  yield  to 
the  legislative  act  ? 

From  these,  and  many  other  selections  which  might  be  made,  it 
is  apparent  that  the  framers  of  the  Constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts  as  well  as 
of  the  legislature. 

Why,  otherwise,  does  it  direct  the  judges  to  take  an  oath  to  sup- 
port it?  This  oath  certainly  applies  in  an  especial  manner 
to  their  conduct  in  their  official  character.  How  immoral  to  im- 
pose it  on  them,  if  they  were  to  be  used  as  the  instruments,  and 
the  knowing  instruments,  for  violating  what  they  were  sworn  to 
support  ? 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words:  "I  do  solemnly  swear  that  I  will  administer  justice 
without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to 
the  rich ;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  *  *  *  ,  according  to  the  best  of 
my  abilities  and  understanding,  agreeably  to  the  Constitution  and 
laws  of  the  United  States." 

"Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  Constitution  of  the  United  States,  if  that  Constitution  forms 
no  rule  for  his  government ;  if  it  is  closed  upon  him,  and  can  not 
be  inspected  by  him  ? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 


38  AMERICAN   ELEMENTARY   LAW. 

mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally  a 
erime. 

It  is  also  not  entirely  unworthy  of  observation  that,  in  declar- 
ing what  shall  be  the  supreme  law  of  the  land,  the  Constitution  is 
itself  first  mentioned ;  and  not  the  laws  of  the  United  States  gen- 
erally, but  those  only  which  shall  be  made  in  pursuance  of  the 
Constitution,  have  that  rank. 

Thus  the  particular  phraseology  of  the  Constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed  to 
be  essential  to  all  written  constitutions,  that  a  law  repugnant  to 
the  Constitution  is  void ;  and  that  courts,  as  well  as  other  depart- 
ments, are  bound  by  that  instrument." 

The  doctrine  thus  announced  has  never  since  been  seriously 
questioned  with  regard  to  the  Federal  Supreme  Court  and  its 
power  to  pacs  on  the  acts  of  Congress.  The  duty  and  power,  how- 
ever, are  not  limited  to  that  court.  They  extend  to  every  court. 
State  or  Federal  and  to  the  State  constitutions  and  State  statutes. 
All  courts  are  alike  charged  with  the  duty  of  enforcing  the  law 
within  the  limits  of  the  jurisdiction  respectively  delegated  to 
them,  and  in  doing  so  it  is  necessary  that  they  shall  determine 
what  the  law  is  and  distinguish  between  it  and  its  semblance,  how- 
ever plausible  and  pretentious  may  be  the  claims  of  the  latter. 
Hence,  every  judge  or  court  before  whom  a  case  is  tried  must  hear 
and  determine  questions  affecting  the  validity  of  such  acts  of 
Congress  or  of  State  legislatures  as  are  directly  and  pertinently 
involved  in  the  case  before  it.  If  the  question  be  one  arising  upon 
the  Constitution  of  the  United  States,  and  rights  claimed  under 
that  instrument  are  denied,  the  point  can  be  carried  up  by  proper 
appellate  proceeding  to  the  Supreme  Court  of  the  United  States 
for  its  ultimate  decision ;  or,  if  the  point  pertain  to  the  State  Con- 
stitution, it  can  be  carried  to  the  highest  State  Court  having  ju- 
risdiction over  the  questions  involved ;  but  in  this  process  of  exer- 
cising original  and  appellate  jurisdiction  each  court  before  whom 
the  question  is  pending  must,  in  determining  its  own  course  of 
conduct,  pass  on  and  adjudicate  whether  or  not  the  statute  is  con- 
stitutional. This  practically  puts  in  the  power  of  the  judiciary 
the  right  of  determining  ultimately  the  proper  construction  of 
the  Constitution,  and  the  validity  of  all  legislative  action  taken 
or  attempted  to  be  taken  thereunder.  When  the  doctrine  was 
first  announced,  serious  apprehensions  were  entertained  in  some 


ORGANIZATION   OP   GOVERNMENT.  39 

quarters  that  it  would  give  to  the  judicial  department  of  the  gov- 
ernment undue  prominence  and  power  and  thus,  for  political  con- 
siderations, the  policy  was  by  some  persons  regarded  as  bad.  As 
a  legal  proposition,  however,  it  has  remained  impregnable,  and 
is  now  a  settled  rule  of  law,  if  precedent  can  settle  a  rule  of  law, 
in  our  system  of  government. 

Application  of  the  Doctrine. 

While  the  general  doctrines  above  announced  remain  unques- 
tioned, there  are  still  points  of  difficulty  frequently  arising  as  to 
their  application.  It  not  infrequently  occurs  that  the  power  of 
the  legislative  or  executive  department  of  the  government  to  act 
upon  certain  matters  or  in  a  certain  way  is  made  dependent  upon 
the  existence  of  specified  facts.  In  such  cases,  should  the  power 
of  the  judiciary  extend  to  a  revision  of  the  finding  by  the  legisla- 
tive or  executive  department  as  to  the  existence  of  such  facts  and 
consequent  authority  by  such  department  to  act  1  The  question  is 
important,  and  the  answer  is  not  uniform. 

As  a  typical  case,  we  may  take  constitutional  provisions  deny- 
ing to  the  legislature  the  right  to  pass  special  laws  except  after 
notice  has  been  given  in  a  designated  way  and  for  a  designated 
time.  Suppose  the  legislature,  acting  under  such  a  constitution, 
shall  pass  a  special  act  without  the  notice  having,  in  fact,  been 
given  as  required  in  the  constitutional  provision.  The  act, 
in  every  other  respect,  is  passed  formally  and  regularly,  is  ap- 
proved by  the  executive,  and  published  as  law.  Can  the  courts  go 
behind  this  record,  inquire  into  the  facts  as  to  notice,  ascertair 
that  no  notice  had  been  given,  and  thus  declare  that  tht 
attempted  act  was  passed  without  authority  and  is,  therefore, 
void?  There  is  a  difference  in  the  decisions,  but  the  decided 
weight  of  authority  answers  in  the  negative. 

The  doctrine  is  this:  If  the  action  taken  by  the  legislative  de- 
partment is  such  that  it  might,  under  the  existence  of  designated 
facts,  lawfully  have  been  taken,  the  fact  that  the  legislature  has 
so  acted  is  a  conclusive  adjudication  that  the  facts  prerequisite 
to  the  exercise  of  its  power  were  inquired  into  and  found  to  exist, 
and  no  other  department  of  the  government  can  reopen  the  ques- 
tion and  set  up  its  judgment  or  conclusion  in  opposition  to  that 
of  the  legislature.  The  distinction  between  this  question  and  an 
inquiry  into  the  constitutionality  of  the  subject  matter  of  an  act 
lies  in  this:  If  the  subject  matter  of  a  proposed  enactment  be  con- 


40  AMERICAN  ELEMENTARY  LAW. 

trary  to  the  constitution,  then  under  no  state  of  facts  could  the 
legislature  enact  it  into  law ;  there  is  an  entire  absence  of  power, 
and  nothing  short  of  an  amendment  to  the  constitution  could 
Confer  it.  Whereas,  in  the  other  case,  the  power  to  do  the  act 
is  conferred,  but  its  exercise  is  made  to  depend  upon  certain  con- 
ditions of  fact,  and  the  determination  of  these  conditions,  being 
necessarily  involved  in  the  exercise  of  the  power,  a  mistake  in  the 
determination  would  be,  not  the  usurpation  of  undelegated  author- 
ity, but  a  mistake  in  the  exercise  of  constitutional  right.  If  this  be 
the  true  conception  of  the  subject,  it  is  but  another  application  of 
the  ever-recognized  distinction  between  the  attempted  exercise 
of  the  power  not  possessed,  which  is  always  void,  and  the  mis- 
taken or  erroneous  exercise  of  power  actually  conferred,  which  is 
never  void,  though  in  many  instances  it  may  be  avoided  by  re- 
visory proceedings. 

Minor  Political  Organizations. 

In  governments  charged  with  the  regulation  of  internal  affairs, 
it  is  essential  that  the  territory  under  the  general  jurisdiction  be 
subdivided  into  smaller  districts  or  portions,  so  as  to  give  better 
opportunity  to  attend,  first  to  matters  of  general  concern,  and 
second  to  local  needs  and  interests. 

As  the  United  States  Government  deals  only  with  national  mat- 
ters it  is  not  necessary  for  it  to  have  any  organized  political  sub- 
divisions. Its  territory  is  divided  into  judicial  and  collection 
districts,  but  these  are  mere  matters  of  convenience  in  adminis- 
tering the  law. 

Subdivisions  of  the  State. 

The  State  is  the  political  unit  in  American  institutions.  Com- 
bined under  the  Federal  Constitution  they  form  the  United 
States;  divided  they  give  the  various  minor  political  subdivi- 
sions. These  are  known  as  districts,  counties  or  parishes,  pre- 
cincts, townships,  cities  and  towns,  and  possibly  by  other  names. 

Those  designated  as  districts  are  usually  very  loose  in  their 
organization,  and  are  created  principally  for  convenience  in 
dividing  the  people  for  election,  taxation  and  educational  and 
judicial  purposes.  They  rarely  have  any  governmental  agencies 
or  machinery  provided  specially  for  them  except  returning  offi- 
cers of  election,  school  trustees,  and  other  similar  boards.    The 


ORGANIZATION   OP  GOVERNMENT.  41 

creation  of  these  districts  is  generaly  by  statute,  and  the  extent 
and  nature  of  their  organization  and  their  powers  and  duties  are 
set  out  in  the  creative  acts. 

Counties. 

The  most  important  among  the  minor  divisions  are  counties. 
These  are  political  subdivisions  of  the  State  occupying  designated 
portions  of  the  territory  of  the  State.  They  possess,  to  a  limited 
degree,  political  autonomy.  Each  has  a  designated  place  within 
its  territory  known  as  the  county  seat,  or  county  site,  at  which 
all  public  business  pertaining  to  the  county  is  attended  to,  where 
all  county  officers  are  required  to  keep  their  offices,  and  where  the 
more  important  courts  are  held.  They  have  a  number  of  local 
officers,  consisting  usually  of  a  judge,  who  presides  over  the  local 
county  court;  a  sheriff,  who  is  the  chief  executive  officer  of  the 
county;  a  treasurer,  a  clerk,  various  taxing  officers,  school  offi- 
cers, etc.,  who  are  usually  elected  by  the  qualified  voters  living 
in  the  county. 

Counties  are  usually  the  units  by  which  liability  to  jury  serv- 
ice is  determined  and  by  which  venue  in  more  important  courts 
is  fixed.  That  is,  in  determining  in  what  court  one  may  be  sued, 
the  court  is  always  designated  and  frequently  selected  by  refer- 
ence to  county  boundaries;  and  liability  to  jury  service  is  deter- 
mined in  the  same  way,  no  one  in  a  State  court  being  subject  to 
jury  service  outside  the  county  of  his  residence. 

The  county  financial  and  business  matters  are  conducted  by 
local  boards  or  officers  designed  differently  in  different  States. 
The  principal  business  of  these  boards  is  to  regulate  taxation, 
establish  and  maintain  public  highways,  court  houses  and  jails, 
provide  for  the  care  of  the  poor  and  take  charge  of  and  manage 
all  property  belonging  to  their  respective  counties.  In  this  way, 
the  general  sovereignty  of  the  State  distributes  its  duties  and 
brings  the  actual  control  of  local  affairs  and  the  operations  of 
the  government  with  reference  to  them  close  to  the  whole  people, 
thus  localizing  and  lessening  the  burdens  of  many  public  duties 
and  facilitating  the  actual  administration  of  public  affairs. 

From  these  considerations,  counties  are  regarded  as  both  local 
and  general  in  their  nature  and  functions;  but  as  many  of  the 
duties  discharged  by  them  pertain  directly  to  and  very  greatly 


42  AMERICAN   ELEMENTARY   LAW. 

affect  the  general  interests  of  the  State  and  the  administration 
of  the  general  law,  they  are  usually  considered  as  maintained  for 
general  governmental  purposes  rather  than  for  local  benefit,  and 
consequently  are  regarded  as  very  largely,  if  not  entirely,  under 
the  direct  control  of  the  State. 

Counties  are  usually,  if  not  always,  organized  under  general 
laws  which  confer  all  their  powers  and  rights  and  fix  their  duties. 
These  general  rules  are  rarely  changed  by  any  special  law  or 
legislative  action  as  to  particular  counties,  so  that  the  legal  status 
of  all  the  counties  in  a  State  is  ordinarily  the  same.  Sometimes, 
under  peculiar  conditions,  some  special  enactment  will  be  passed 
changing  some  of  the  general  provisions  of  the  law  or,  it  may 
be,  limiting  their  operation  as  to  some  designated  county  for  a 
limited  time  for  limited  purposes.  These  special  actions,  how- 
ever, are  exceptional. 

Counties  are  regarded  as  public  corporations  having  legal  exist- 
ence and  as  possessing  legal  rights  and  owing  limited  legal  duties. 
These  rights  and  duties  are  of  two  general  kinds,  governmental 
and  business.  As  to  the  first,  counties  are  not  subject  to  suit  at 
the  hands  of  individuals  unless  they  have  assumed  or  undertaken 
obligation  by  legally  authorized  contract.  As  to  their  business 
functions,  there  is  a  slightly  larger  range  of  liability,  but  even  in 
these  regards  their  legal  obligation  to  individuals  is  very  limited. 

Counties  may  acquire,  own  and  dispose  of  property  and  make 
contracts  to  enable  them  to  discharge  their  public  duties  and  may 
maintain  suits  in  their  own  name  against  any  one  violating  these 
rights,  or  any  of  them.  Their  capacity  to  sue  as  plaintiffs  is  not 
limited,  but  is  the  same  as  that  of  an  ordinary  individual.  On  the 
other  hand,  their  liability  to  suit  is  limited.  Wherever  they  are 
authorized  to  make  contracts  and  do  so,  and  then  violate  the  con- 
tract, they  may  be  sued.  They  are  not  liable  to  suit  for  torts  ex- 
cept in  those  cases  in  which  some  constitutional  or  statutory  pro- 
vision creates  such  liability;  that  is,  at  common  law  the  county 
can  not  be  sued  for  a  tort,  and  if  such  suit  can  be  maintained,  it 
must  be  by  reason  of  some  written  law. 

Counties  are  created  by  the  state  and  have  no  inherent  or 
original  powers  or  prerogatives.  All  their  powers  are  derived 
from  the  state  in  which  they  exist  and  are  subject  to  be  taken 
from  them  whenever  the  state  so  desires. 

Counties  are  in  turn  divided  into  subdivisions  called  sometimes 


ORGANIZATION   OP   GOVERNMENT.  43 

precincts,  sometimes  townships.  These  are  made  for  the  still 
greater  convenience  of  the  people  in  matters  still  more  local. 
The  New  England  township  is  said  to  he  the  best  example  of  local 
self-government  that  is  to  be  found.  As  such  direct  representa- 
tive of  sovereignty,  the  sovereign's  immunity  to  suit,  except  by 
its  own  consent,  was,  in  a  large  measure,  accorded  to  the  town- 
ship in  the  beginning  of  our  government,  and  from  this,  as  an 
historical  basis,  has  grown  up  to  a  large  extent  the  doctrine  of 
non-liability  of  counties  for  conduct  otherwise  tortious. 

Cities  and  Towns. 

Experience  demonstrates  that,  for  both  business  and  social  pur- 
poses, people  will  congregate  in  large  numbers  within  small 
spaces.  This  massing  of  population  creates  the  necessity  for  bet- 
ter and  special  means  of  protecting  private  rights  and  supplying 
public  needs.  Better  highways,  better  sanitation  and  better  pro- 
tection against  fire  and  against  crime,  larger  and  better  facilities 
for  water  and  light  and  transportation,  and  many  other  matters 
equally  important  and  yet  local  in  their  nature,  require  additional 
organization  of  the  community  in  which  these  needs  exist.  Such 
organization  is  secured  by  the  incorporation  of  these  thickly- 
settled  districts  into  new  political  units,  known  as  cities  or  towns. 

These  corporations,  while  public  and  governmental,  are  still 
more  for  local  than  for  general  purposes,  and  tend  more  to  the 
special  convenience,  advantage  and  protection  of  the  inhabitants 
of  the  designated  territory  than  of  the  State  at  large,  and  the 
powers  conferred  and  duties  and  liabilities  imposed  are  made  to 
correspond  to  these  conditions.  As  a  rule,  but  a  small  share  of 
the  general  powers  or  of  the  general  duties  of  government  are 
conferred  on  these  local  corporations,  and  as  those  which  are 
conferred  are  for  local  benefit  and  the  advantages  accruing  are 
limited  in  a  great  measure  to  residents  in  the  particular  territory, 
immunity  from  responsibility  is  not  recognized  in  behalf  of  the 
corporation,  and  it  will,  ordinarily,  be  held  liable  on  all  author- 
ized contracts  and  on  all  torts  committed  in  carrying  on  its  local 
concerns,  in  the  same  way  and  to  the  same  extent  that  a  private 
corporation  would  be. 

They  are,  however,  not  responsible  for  wrongs  committed  by 
their  officers  in  the  exercise  of  their  general  governmental  func- 
tions.   As  to  those  they  are  immune  from  suit. 


44  AMERICAN  ELEMENTARY  LAW. 

There  are  two  general  methods  of  creating  such  corporations: 
First,  by  the  passage  of  general  laws  providing  for  their  creation, 
specifying  how  the  corporation  shall  be  effected,  the  powers  to  be 
possessed  by  it  and  the  duties  and  liabilities  to  which  it  is  subject, 
and  authorizing  the  inhabitants  of  any  district  or  locality  having 
the  legal  requirements  as  set  out  in  the  act  to  combine  themselves 
into  such  corporation.  The  second  method  is  by  direct  or  special 
act  of  the  legislature  creating  the  particular  town  or  city.  In 
whichever  way  any  town  or  city  may  be  created,  it  has  such  pow- 
ers and  is  subject  to  such  responsibilities  as  its  creative  act  or 
charter,  whether  general  or  special,  interpreted  and  construed  ac- 
cording to  legal  rules,  shall  specify. 

The  scheme  of  government  for  such  corporations  is  usually  local 
the  officers  consisting  generally  of  a  chief  executive,  known  as  a 
mayor,  taxing  officers,  officers  charged  with  the  duty  of  keeping 
public  records,  and  officers  charged  with  the  duty  of  keeping  pub- 
lic funds,  a  city  board,  known  as  councilmen  or  aldermen,  some 
officer  or  officers  having  local  judicial  authority,  and  police  officers 
and  commissioners  for  various  purposes,  but  whose  duties  usually 
relate  to  some  public  utility.  The  general  legislative  power  of  the 
corporation,  so  far  as  it  is  invested  with  such  power,  is  conferred 
upon  its  board  of  aldermen  or  council.  These  powers  are,  of  ' 
course,  local,  and  are  supplementary  to  the  general  regulations  or 
laws  of  the  State.  The  judicial  officers  of  the  city  are  usually  re- 
stricted in  their  jurisdiction  to  the  enforcement  of  city  ordinances 
and  State  laws  against  petty  misdemeanors. 

The  selection  of  the  several  officers  is  usually  entrusted  to  the 
people  of  the  city  directly,  by  election,  or  indirectly,  by  the  elec- 
tion of  certain  of  their  officers  and  the  appointment  by  them  of 
the  remainder.  Whether  this  right  of  local  self-government  may 
be  regulated,  modified  or  taken  away  by  the  legislature  of  the 
State,  either  in  original  acts  of  incorporation  or  in  amendments  to 
charters  and,  if  so,  in  what  way  and  to  what  extent,  are  quite  in- 
teresting and  unsettled  questions.  The  courts  of  different  States 
have  differed  with  regard  to  them.  In  Texas,  the  question  has 
recently  been  raised  as  to  the  power  of  the  legislature  to  au- 
thorize the  governor  to  appoint  commissioners  to  exercise  many 
of  the  most  important  powers  of  the  government  of  the  city  of 
Galveston.  The  two  courts  of  last  resort  have  come  to  directly 
opposite  conclusions  on  the  subject;  the  Court  of  Criminal  Ap- 


ORGANIZATION   OF   GOVERNMENT.  45 

peals  holding  that  criminal  ordinances  passed  by  such  commis- 
sioners or  by  a  board  or  council  of  which  they  were  members,  were 
void,  and  the  Supreme  Court  holding  that  civil  ordinances,  or 
action  taken  in  civil  matters,  by  the  same  board  with  the  same 
constituents,  are  valid*  (See  Ex  Parte  Lewis,  Court  of  Criminal 
Appeals  73  S.  "W.  811,  and  Brown  et  al.  V.  City  of  Galveston,  Su- 
preme Court,  75  S.  W.  488.) 


PART  II. 


THE  UNITED  STATES  AND  STATE  GOVERNMENTS  AND 
THEIR  RELATIONS  TO  EACH  OTHER.       - 


CHAPTER  I. 

THE  UNITED  STATES  GOVERNMENT. 

Having  considered  political  power  in  the  abstract  and  Ameri- 
can governments  in  a  general  way,  we  come  now  to  deal  with 
them  in  the  concrete,  as  manifested  and  organized  in  the  govern- 
ment of  the  United  States  and  the  several  States  of  the  Union. 
As  the  latter  are  so  numerous,  it  is  impracticable  and  would  only 
lead  to  confusion  to  attempt  to  take  up  each  and  consider  it  in  all 
its  details.  We  will  therefore  present  those  matters  which  are 
common  to  them  all,  seeking  thus  to  show  the  genius  and  spirit  of 
our  State  institutions. 

COMPARISONS  OP  THE  TWO  GOVERNMENTS. 

The  people  of  the  several  States  of  the  Union  live  under  two 
governments,  each  having  jurisdiction  over  certain  matters  as  to 
which  it  is  supreme.  Each  is  based  upon  the  consent  of  those  gov- 
erned and  is  republican  in  form. 

The  State  governments  are  formed  by  the  people  of  the  respec- 
tive States,  acting  directly.  The  Federal  government  was  formed 
by  the  people  of  the  United  States,  acting  indirectly  through  their 
State  organizations. 

The  States,  being  formed  by  the  direct  act  of  the  people,  are  the 
direct  and  primary  representatives  of  sovereignty  and  have  all  the 
political  power  not  expressly  or  impliedly  conferred  upon  the 
Federal  government.  The  Federal  government,  being  a  govern- 
ment of  delegated  authority,  has  no  power  or  jurisdiction  except 
that  conferred  by  the  Constitution  creating  it. 


THE  UNITED  STATES  GOVERNMENT.  47 

The  State  governments  are  supreme  in  their  domestic  affairs, 
but  they  have  surrendered  their  control  over  national  and  interna- 
tional affairs.  The  Federal  government  is  supreme  in  national 
and  international,  and  in  most  interstate  affairs,  but  has  no  juris- 
diction over  the  domestic  or  internal  affairs  of  the  State. 

The  several  States  were  originally  unitary  States.  They  dele- 
gated certain  of  their  sovereign  prerogatives  to  the  United  States. 
It  is  now  settled  that  this  delegation  was  irrevocable  and  the 
powers  thus  conferred  cannot  be  withdrawn.  The  United  States 
Government  is,  therefore,  federal  and  not  confederate  in  its  na- 
ture. The  result  is  "An  indissoluble  Union  of  indestructible 
States." 

The  systems  of  agencies  which  constitute  these  two  govern- 
ments are  separate  and  distinct.  In  most  of  the  States,  the 
same  persons  are  forbidden  to  hold  office  under  the  two  Govern- 
ments at  the  same  time.  The  general  scheme  of  the  two  is  the 
same.  Each  is  based  upon  the  idea  of  the  sovereignty  of  the 
people;  each  has  a  written  constitution;  and  each  has  division  of 
the  powers  of  government  into  legislative,  judicial,  and  execu- 
tive, and  provides  for  the  exercise  of  these  several  powers  by  sep- 
arate bodies  of  officers;  each  is  largely  based  upon  the  English 
Common  Law  ideas  and  conceptions  of  law  and  legal  rights  and 
duties.  The  constitution  of  neither  can  be  understood  except  by 
resorting  to  the  common  law  as  a  means  of  interpretation  and 
construction. 

In  matters  of  legislation,  the  powers  of  the  two  governments  are 
usually  exclusive,  though  in  a  small  and  diminishing  class  of  cases 
they  are  concurrent. 

In  the  matter  of  judicial  enforcement  of  rights  under  the  laws 
of  either,  their  powers  are  frequently  concurrent,  and  in  all  cases 
the  judicial  officers  of  each  must  observe  and  enforce  the  laws  of 
both  so  far  as  these  laws  affect  substantive  rights. 

"When  a  particular  subject  matter  is  of  such  nature  that  its  reg- 
ulation will  affect  both  National  and  State  matters,  the  govern- 
ment having  direct  and  immediate  jurisdiction  is  authorized  to 
regulate  it,  and  the  indirect  consequences  must  be  borne  by  the 
other.  Thus  the  chartering  of  railroads  in  the  several  States  is 
within  the  jurisdiction  of  the  several  States,  although  the  exist- 
ence or  non-existence  of  such  roads  of  necessity  affects  interstate 
commerce ;  on  the  other  hand,  fixing  freight  charges  upon  inter- 


48  AMERICAN   ELEMENTARY  LAW. 

state  commerce  is  in  the  jurisdiction  of  the  Federal  government 
although  these  charges  affect  very  seriously  the  maintenance  of 
the  railroads  as  domestic  carriers. 

Suffrage  and  Its  Regulation. 

As  we  have  seen,  in  our  American  institutions  sovereignty  in- 
heres in  the  people  collectively  and  not  in  each  citizen  individu- 
ally. The  exercise  of  sovereign  power  is  necessarily  in  the  control 
of  the  sovereign.  Voting  is  an  exercise  of  sovereign  power.  Suf- 
frage, therefore,  is  not  a  right  inherent  in  the  individual  citizen, 
but  is  in  the  body  of  citizens  collectively,  consequently  no  one  has 
a  right  to  vote  except  those  upon  whom  the  sovereign  power  con- 
fers the  privilege.  It  is  for  this  reason  that  the  people  in  their  con- 
stitutions may  prescribe  qualifications  without  which  persons  can- 
not vote  legally,  and  may  also,  by  constitutional  provision,  author- 
ize the  Legislature  to  prescribe  such  qualifications.  The  only  limi- 
tation on  this  power  is  that  contained  in  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States  forbidding  the  dis- 
franchisement of  any  person  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Subject  to  only  this  limitation,  the  people 
of  each  State  determine  who  may  vote  therein. 

Under  the  Constitution  of  the  United  States  the  people  of  the 
several  States  determine  also  who,  within  their  respective  juris- 
dictions, shall  vote  for  Federal  officers.  This,  of  course,  is  sub- 
ject to  the  limitations  imposed  by  the  Fourteenth  Amendment 
just  referred  to.  No  Federal  officers,  except  members  of  the 
House  of  Representatives  in  Congress  are  elected  by  a  direct  vote 
of  the  people.  The  President  and  Vice-President  of  the  United 
States  are  elected  indirectly  by  the  people  by  means  of  an  electoral 
college  in  each  State.  The  Federal  Constitution  provides  that  all 
persons  entitled  to  vote  for  members  of  the  largest  house  of  the 
State  Legislature  in  each  State  may  vote  for  representatives  in 
Congress  and  for  members  of  the  electoral  college  in  that  State. 
United  States  Senators  are  elected  by  the  Legislatures  of  the  re- 
spective States,  the  members  of  which  are,  of  course,  elected  by  the 
qualified  voters  from  the  respective  districts  in  each  State.  All 
other  Federal  officers  are  appointed.  Thus  it  is  seen  that  each 
State,  by  the  exercise  of  its  sovereign  power,  limited  only  by  the 
Fourteenth  Amendment  to  the  Constitution,  determines  who, 
within  its  borders,  is  qualified  to  vote  for  State  and  Federal  offi- 


THE  UNITED  STATES  GOVERNMENT.  49 

cers.    The  State  also  fixes  the  qualifications  of  electors  for  local 
officers. 

The  right  to  vote  is  limited  in  all  the  States,  the  disfranchised 
classes  differing  somewhat  in  each  State  from  every  other.  The 
rule  is  that  adult  males,  that  is,  males  over  21  years  of  age,  not 
subject  to  disqualification  by  reason  of  unsoundness  of  mind  or 
previous  conviction  of  crime,  are  permitted  to  vote.  In  some 
States  there  are  property  qualifications,  in  some  educational,  and 
in  some  a  combination  of  the  two.  In  others,  the  payment  of  des- 
ignated taxes  is  a  condition  precedent  to  the  right  to  vote.  In  a 
few  States,  women  possessing  the  qualifications  prescribed  for 
men  are  permitted  to  vote.  As  before  stated,  the  enfranchised 
classes  are  fewer  in  the  aggregate  than  the  disfranchised,  so  that 
the  government  is  really  entrusted  to  a  minority  of  those  who  are 
subject  to  its  laws. 

LEGISLATIVE  DEPARTMENT. 

The  legislative  powers  of  the  United  States  government  are 
vested  in  the  Congress  of  the  United  States.  This  body  consists 
of  two  branches,  the  Senate  and  the  House  of  Representatives. 
The  Senate  is  composed  of  two  senators  from  each  State,  elected 
by  the  legislature  thereof.  Each  senator  has  one  vote,  and  holds 
office  for  six  years.  Vacancies  occurring  during  recess  of  the  leg- 
islature are  filled  by  appointment  by  the  governor  of  the  State. 
Such  appointee  holds  until  the  legislature  at  its  next  session  shall 
choose  his  successor  and  such  successor  shall  qualify.  To  be 
eligible  to  the  Senate,  one  must  be  at  least  30  years  of  age,  an  in- 
habitant of  the  State  by  which  he  is  elected,  and  must  have  been  a 
citizen  of  the  United  States  for  nine  years.  The  time  and  manner 
of  electing  senators  is  primarily  with  the  legislatures  of  the  sev- 
eral States,  though  Congress  has  the  power  of  changing  these  reg- 
ulations, except  as  to  the  place  of  holding  the  election. 

The  number  of  the  senators  is  the  same  from  each  State,  with- 
out reference  to  its  territorial  extent,  the  number  of  its  inhabit- 
ants, its  wealth,  or  other  considerations.  This  is  a  recognition  of 
the  political  autonomy  and  local  sovereignty  of  the  several  States. 
On  the  floor  of  the  United  States  Senate,  each  senator  is  the  equal 
of  every  other,  and  the  State  which  he  represents  has  equal  voice 
and  right  in  that  body.  As  no  bill  can  become  a  law  without  the 
4 


50  AMERICAN   ELEMENTARY   LAW. 

concurrence  of  the  Senate,  the  power  of  each  State  and  the  pro- 
tection thus  afforded  to  it  is  great. 

The  Senate,  when  in  session,  is  presided  over  by  the  Vice-Presi- 
dent of  the  United  States,  and  when,  by  reason  of  the  death  of  the 
President  or  Vice-President  there  is  no  Vice-President,  the  body 
provides  its  own  presiding  officer  by  election  from  among  its  own 
members.  The  Vice-President  has  no  vote,  except  in  case  of  a  tie ; 
but  the  member  elected  president  pro  tempore  does  not  lose  his 
membership  in  the  body,  and  is  allowed  to  vote  upon  all  questions. 

On  the  other  hand,  the  members  of  the  House  of  Representa- 
tives are  chosen  by  popular  election  by  the  qualified  voters  in  each 
State.  These  members  are  apportioned  among  the  States  accord- 
ing to  the  number  of  their  inhabitants,  ascertained  by  the  last  pre- 
ceding United  States  census,  and  excluding  Indians  not  taxed 
provided  that  each  State  shall  have  at  least  one  representative. 
The  basis  of  representation  is,  however,  subject  to  be  cut  down  in 
any  State  in  which  the  male  inhabitants,  citizens  of  the  United 
States  and  21  years  of  age,  are  disfranchised  for  any  cause  except 
for  crime  or  participating  in  rebellion,  in  such  proportion  as  the 
number  thus  disfranchised  bears  to  the  whole  number. 

Members  of  the  House  hold  office  for  two  years.  If  a  vacancy 
occurs  at  any  time,  it  is  filled  by  special  election  ordered  by  the 
governor  of  the  State. 

In  providing  for  the  election  of  representatives,  the  legislature 
of  the  State  may  divide  the  State  into  separate  districts,  and 
may  have  a  representative  from  each  district  elected  by  the  voters 
thereof,  or  it  may  have  them  all  elected  by  the  voters  of  the  State 
at  large ;  or  they  may  divide  the  State  into  a  number  of  districts, 
less  than  the  whole  number  of  representatives  to  be  elected  within 
the  State,  and  have  one  elected  from  each  of  the  districts  and  the 
others  from  the  State  at  large. 

By  making  this  branch  of  Congress  elective  and  apportioning  its 
members  according  to  population  and  limiting  the  term  of  office  to 
two  years,  it  was  designed  to  give  to  the  people  direct  and  respon- 
sible representation,  and  as  the  concurrence  of  the  houses  is  essen- 
tial to  the  passage  of  a  bill,  laws  contrary  to  current  popular  sen- 
timent can  not  easily  be  enacted.  To  be  eligible  as  a  representa- 
tive, one  must  be  25  years  of  age  and  an  inhabitant  of  the  State 
in  which  he  is  chosen,  and  must  have  been  a  citizen  of  the  United 


THE  UNITED  STATES  GOVERNMENT.  51 

States  for  seven  years.  The  House  chooses  its  own  presiding  offi- 
cer, called  the  Speaker  of  the  House.  He  has  a  vote  upon  all 
questions. 

Each  house  is  the  exclusive  judge  of  the  qualifications  of  its 
members,  makes  its  own  rules  of  procedure,  and  may,  by  a  two- 
thirds  vote,  expel  a  member.  A  majority  of  the  members  of  each 
house  is  a  quorum.  Journals  of  their  proceedings  are  required  to 
be  kept.  All  bills  raising  revenue  must  originate  in  the  House, 
but  the  Senate  may  propose  or  concur  in  amendments  to  such 
bills.  Both  houses  must  concur  in  the  passage  of  a  bill  before  it 
becomes  a  law. 

Bills  which  have  passed  both  houses  are  presented  to  the  Presi- 
dent for  his  action.  If  he  approves  a  bill  he  signs  it  and  files  it 
with  the  Secretary  of  State ;  if  he  disapproves  it,  he  returns  it  to 
the  house  in  which  it  originated  with  his  objections ;  it  may  then 
be  reconsidered,  and  if  it  shall  be  passed  by  two-thirds  vote  in  each 
house,  it  becomes  a  law,  notwithstanding  the  President's  objec- 
tion. Failure  by  the  President  to  act  upon  a  bill  in  ten  days  is 
equivalent  to  approval  by  him.  This  power  in  the  President  to 
disapprove  of  proposed  legislation  is  called  the  veto  power.  It 
extends  not  only  to  bills  or  proposed  statutes,  but  also  to  every 
order,  resolution,  or  vote  of  Congress  which  requires  the  concur- 
rence of  both  houses. 

This  power  was  used  rather  sparingly  in  the  early  history  of 
the  government,  but  its  use  has  grown  more  frequent  in  later 
years. 

Express  Powers  of  Congress. 

1.  To  lay  and  collect  taxes,  duties,  imposts  and  excises ;  to  pay 
the  debts  and  provide  for  the  common  defense  and  general  wel- 
fare of  the  United  States;  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States  and  direct  taxes 
must  be  apportioned  among  the  States  in  accordance  with  popu- 
lation. 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States 


52  AMERICAN  ELEMENTARY  LAW. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States. 

7.  To  establish  postoffices  and  post  roads. 

8.  To  promote  the  progress  of  science  and  the  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries. 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court. 

10.  To  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offenses  against  the  law  of  nations. 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water. 

12.  To  raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years. 

13.  To  provide  and  maintain  a  navy. 

14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces. 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections  and  repel  invasions. 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  respec- 
tively the  appointment  of  the  officers  and  the  authority  of  train- 
ing the  militia  according  to  the  discipline  prescribed  by  Congress. 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  States,  and  the  acceptance  of  Congress,  be- 
come the  seat  of  the  government  of  the  United  States,  and  to 
exercise  like  authority  over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other  need- 
ful buildings. 

18.  To  make  all  laws  which  shall  be  necessary  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  the  government  of  the  United  States,  or  any 
department  or  officer  thereof.     (Article  I,  Section  8.) 

19.  To  impeach  Federal  officers,  the  charges  being  made  by 


THB  UNITED  STATES  GOVERNMENT.  53 

the  House  and  heard  and  determined  by  the  Senate.     (Article  I, 
Section  3,  clauses  6  and  7.) 

20.  To  fix  times  of  choosing  presidential  electors.  (Article 
II,  Section  1,  clause  4.) 

21.  To  change  time,  places  and  manner  of  choosing  United 
States  senators  and  congressmen,  except  as  to  places  of  choosing 
senators.     (Article  I,  Section  4,  clause  1.) 

22.  To  regulate  the  succession  in  office  of  President,  when  no 
President  or  Vice-President    (Article  II,  Section  2,  clause  6.) 

23.  To  prevent  slavery  in  the  United  States.  (13th  Amend- 
ment.) 

24.  To  protect  citizens  of  the  United  States  and  of  the  several 
States  against  unlawful  abridgment  of  their  privileges  and  im- 
munities, and  against  deprivation  of  legal  rights  except  by  due 
process  of  law.     (14th  Amendment.) 

25.  To  reduce  representation  of  each  State  in  Congress  and 
the  Electoral  College,  whenever  male  inhabitants  of  21  years  of 
age  are  disfranchised  for  any  cause  except  for  crime  or  participa- 
tion in  rebellion.     (14th  Amendment.) 

26.  To  prevent  disfranchisement  of  citizens  on  account  of  race, 
color,  or  previous  condition  of  servitude.     (15th  Amendment.) 

EXECUTIVE  DEPARTMENT. 
President. 

It  is  apparent  that  when  the  Constitution  was  adopted,  the 
President  was  the  only  executive  officer  peculiarly  in  the  minds 
of  the  people.  The  plan  for  his  selection  is  elaborate.  Security 
against  vacancy  of  the  presidential  office  by  the  death,  inability, 
or  resignation  of  the  person  elected  was  provided  for  by  the  estab- 
lishment of  the  office  of  Vice-President.  This  was  as  far  as  the 
scheme  of  succession  was  worked  out  in  detail.  But  still  it  was 
foreseen  that  two  vacancies  might  occur  in  the  course  of  four 
years,  and  Congress  was  given  power  to  provide  for  this  by  de- 
claring what  "officer  shall  then  act  as  President."  Congress 
has  exercised  this  power,  and  it  is  now  the  law  that  the  following 
cabinet  officers  in  the  order  named,  if  they  possess  the  necessary 
qualifications  under  the  Constitution  and  have  been  appointed 
by  the  President  and  confirmed  by  the  Senate  and  are  not  under 
impeachment,  shall  act  as  President  in  case  of  death,  removal, 
resignation,  or  inability  of  both  the  President  and  Vice-Presi- 


54  AMERICAN   ELEMENTARY   LAW. 

dent,  viz. :  Secretary  of  State,  Secretary  of  the  Treasury,  Secre- 
tary of  War,  Attorney-General,  Postmaster-General,  Secretary 
of  the  Navy,  and  Secretary  of  the  Interior.  The  person  so  in 
stalled  shall  continue  therein  until  the  disability  of  the  Presi- 
dent or  Vice-President  is  removed.  Congress  has  also  provided 
for  a  special  election  for  President,  under  the  conditions  stated 
above. 

Manner  of  Election. 

The  President  and  the  Vice-President  are  not  elected  by  direct 
vote  of  the  people,  but  by  a  number  of  electors,  selected  in  each 
State  as  its  legislature  may  determine,  and  equal  to  the  whole 
representation  of  that  State  in  Congress.  These  electors  meet 
in  their  respective  States,  and  each  votes  by  ballot  for  one  candi- 
date for  President  and  one  for  Vice-President.  A  list  of  these 
ballots  is  then  made  up,  certified,  sealed  and  transmitted  by  mes- 
senger to  the  capital  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate.  This  officer  opens  the  lists  and  counts  the  bal- 
lots in  the  presence  of  both  houses  of  Congress,  and  announces  the 
result.  If  any  person  has  secured  a  majority  of  the  votes  cast 
by  the  electors  for  President,  he  is  declared  elected  to  that  office. 
If  any  has  secured  a  majority  of  the  votes  cast  for  Vice-President, 
he  is  declared  elected  to  that  office.  If  no  one  receives  a  majority 
of  all  the  votes  for  President,  there  is  no  election  to  that  office, 
and  the  House  of  Representatives  proceeds  at  once  to  choose  a 
President  by  ballot  from  the  three  candidates  having  the  highest 
number  of  votes.  In  such  election  the  representatives  vote  by 
State,  the  representatives  from  each  State  having  in  the  aggregate 
one  vote.  Two-thirds  of  the  States  must  participate,  and  a 
majority  of  all  the  States  is  necessary  to  an  election.  If  there  is 
no  election  of  a  Vice-President  by  the  Electoral  College,  that  fact 
is  announced,  and  the  Senate  proceeds  to  elect  that  officer,  choos- 
ing between  the  two  candidates  having  the  largest  vote.  The 
senators  vote  individually  and  not  by  States.  Two-thirds  con- 
stitute a  quorum,  and  a  majority  of  the  whole  Senate  is  necessary 
to  a  choice. 

It  follows,  from  the  above  provisions,  that  a  majority  of  the 
votes  cast  for  the  electors  by  the  people  is  not  necessary  to  an 
election  of  a  President  or  Vice-President;  in  fact,  it  has  several 
times  occurred  that  the  man  elected  President  had  received  a 


THE  UNITED  STATES  GOVERNMENT.  55 

minority  of  the  popular  vote.  The  several  political  parties  nomi- 
nate their  respective  candidates.  These  parties  may  be  about 
equally  divided  in  one  State,  and  one  of  them  carries  it  by  a  thou- 
sand majority  and  elects  all  of  the  electors  of  the  State  from 
that  party.  This,  of  course,  gives  the  whole  vote  of  that  State 
to  the  candidate  of  the  successful  party.  In  another  State, 
equally  populous  and  having  the  same  number  of  electoral  votes, 
the  two  parties  are  not  equally  divided,  but  practically  all  the 
votes  belong  to  the  party  which  was  defeated  in  the  other  State. 
The  candidate  of  this  party  gets  almost  all  the  popular  votes  of 
that  State,  but  in  the  Electoral  College  he  only  gets  the  electoral 
vote  of  that  State,  which,  in  the  supposed  case,  is  the  same  as  that 
given  the  opposing  candidate  by  the  first  State.  As  between 
these  States  there  would  be  a  tie  in  the  vote,  and  no  election ;  but 
a  third  State  selects  electors  favorable  to  the  candidate  who  was 
successful  in  the  first  State;  they  put  their  vote  with  the  votes 
of  the  first  State  and  make  an  election.  The  majority  of  the  suc- 
cessful candidate  in  the  third  State  may  have  been  small,  and  the 
total  popular  vote  secured  by  the  successful  candidate  in  States 
one  and  three  may  not  equal  the  majority  of  the  unsuccessful 
one  in  the  second  State,  yet  the  one  getting  the  majority  of  the 
electoral  vote  gets  the  office,  to  the  exclusion  of  the  one  who  has 
the  majority  of  the  popular  vote. 

Executive  Departments. 

The  duties  of  the  President  are  very  great.  He  is  charged 
with  general  enforcement  of  the  law.  He  is  the  head  of  all  the 
several  departments  of  the  executive  branch  of  the  government, 
and  upon  him  rests  the  ultimate  responsibility  as  to  each.  These 
departments  are  now  nine  in  number,  viz. :  Department  of  State, 
of  the  Treasury,  of  War,  of  Justice,  of  the  Postoffice,  of  the  Navy, 
of  the  Interior,  of  Agriculture,  and  of  Commerce  and  Labor. 
The  first  of  these  historically  antedates  the  office  of  president  it- 
self. Those  of  the  Treasury,  of  "War,  of  Justice,  of  the  Postoffice. 
and  of  the  Navy  were  created  practically  upon  the  organization 
of  the  government.  The  Department  of  the  Interior  was  created 
in  1849,  of  Agriculture  in  1889,  and  of  Commerce  and  Labor  in 
1902. 

Each  of  these  departments  is  in  charge  of  a  chief,  or  head 
called  secretary  of  the  particular  department,  except  in  the  case 


56  AMERICAN   ELEMENTARY   LAW. 

of  the  Department  of  Justice,  in  which  he  is  called  the  attorney- 
general,  and  in  the  Postoffice,  in  which  he  is  called  the  postmaster- 
general.  In  the  departments  there  are  thousands  of  subordinate 
officers,  each  of  whom  is  responsible  to  his  chief,  and  whose  official 
action,  in  its  ultimate  results,  affects  the  President  either  for 
good  or  bad. 

The  several  heads  of  these  departments  constitute  the  Presi- 
dent's Cabinet.  They  have  two  meetings  each  week.  Their  pur- 
pose is  to  keep  the  President  fully  informed  upon  all  matters  of 
importance,  mutually  to  advise  and  counsel  one  another  and  the 
President  and  to  receive  instructions  from  him.  The  President 
is  the  real  authority,  and  has  the  final  decision  of  all  questions  in 
his  hands.  He  gets  the  best  information  and  advice  he  can  and 
then  determines  the  large  matters  of  policy  himself,  leaving  the 
details  and  administrative  part  of  the  scheme  to  the  head  and 
subordinates  of  the  department  to  which  the  matter  pertains. 

It  is  a  singular  fact  that  there  is  no  reference  in  the  Constitu- 
tion to  any  of  these  departments,  as  such,  except  in  general  terms. 
In  stating  the  duties  of  the  President,  it  is  said  that  he  "may 
require  the  opinion  in  writing  of  the  principal  officer  in  each  of 
the  executive  departments  upon  any  subject  relating  to  the  duties 
of  their  respective  offices."  This  does  not  seem  to  foreshadow 
Cabinet  meetings  of  the  kind  now  in  vogue.  There  is  nothing 
in  the  Constitution  indicating  the  number  of  the  departments,  nor 
the  manner  of  their  establishment  or  organization;  hence  the 
whole  matter  is  left  with  Congress  and  the  President.  The  pres- 
ent arrangement  has  grown  up  under  their  joint  action,  and  is 
very  effective;  it  has  the  advantage  of  flexibility  and  ease  of 
adaptation  to  varying  conditions,  as  the  governmental  needs  may 
suggest  or  require. 

Pardons. 

The  pardoning  power  is  also  vested  in  the  President.  It  is  one 
of  extreme  importance  and  delicacy.  Errors  are  constantly  made 
in  the  administration  of  the  criminal  law,  and  in  many  instances 
change  of  conditions  subsequent  to  the  trial  make  it  proper  to 
relieve  from  penalties,  justly  and  legally  imposed  at  the  time 
the  judgments  were  entered.  These  nice  balancings  between 
justice  and  mercy,  determinations  as  to  upholding  the  adjudica- 
tions of  the  courts,  and  setting  them  aside  in  proper  cases,  taxes 


THE  UNITED  STATES  GOVERNMENT.  57 

to  the  utmost  both  the  brain  and  sympathy  of  the  most  capable. 
This  all  falls  upon  the  President 

Treaties. 

The  next  duty  imposed  upon  the  President  is  to  make  treaties 
with  foreign  nations.  In  this  he  acts  in  conjunction  with  the  Sen- 
ate, but  the  initative  is  with  him.  Usually  the  terms  of  the  agree- 
ment are  passed  upon  and  arranged  with  the  foreign  power,  and 
the  matter  in  its  final  form  is  presented  to  the  Senate  for  its  judg- 
ment. Occasionally  the  President  asks  the  judgment  and  advice 
of  the  Senate  before  arranging  the  final  terms  with  the  other 
nation. 

A  treaty  is  an  agreement  between  two  or  more  independent 
States,  and  not  a  legislative  act.  But,  under  the  Constitution  of 
the  United  States,  treaties  made  with  other  nations  are  declared  to 
be  a  part  of  the  law  of  the  land,  and,  in  this  sense,  they  are  bind- 
ing upon  all  the  persons  subject  to  the  governments  entering  into 
them,  and  must  be  obeyed  both  by  the  officers  in  their  public 
actions  and  by  the  citizens  in  their  private  capacities. 

Appointing  Power. 

The  President  appoints  all  ambassadors  and  other  public  minis- 
ters, consuls,  and  judges  of  the  Supreme  Court  and  all  other 
officers  of  the  United  States  except  Senators  and  Kepresentatives, 
unless  there  be  express  law  authorizing  some  one  else  to  appoint. 
In  all  important  offices,  this  appointment  must  be  concurred  in 
by  two-thirds  of  the  Senate.  In  case  of  such  inferior  officers  as 
Congress  may  designate,  the  appointment  does  not  need  confirma- 
tion by  the  Senate.  Congress  can  lodge  the  power  of  appoint- 
ment to  inferior  positions  with  the  courts  or  the  heads  of  depart- 
ments. All  Federal  offices  of  consequence  are  appointed  by  the 
President.  The  highest  he  selects  for  himself,  usually  in  con- 
ference with  the  leaders  of  the  political  party  by  which  he  was 
elected.  The  less  important  are  filled  on  recommendation  of 
members  of  Congress  from  the  district  in  which  the  office  is  to 
be  filled,  or  by  political  influence  or  standing. 

This  power  of  appointment,  extending,  as  it  does,  throughout 
the  whole  United  States,  and  to  many  officers  to  foreign  place? 
gives  a  patronage  which  is  dangerous  in  the  extreme  to  the  purity 
and  efficiency  of  the  public  service  j  but  no  better  scheme  has  been 


58  AMERICAN   ELEMENTARY   LAW. 

devised,  and  as  trust  must  be  reposed  somewhere,  the  present  plan 
will  likely  continue,  modified  by  the  doctrines  and  methods  in- 
volved in  the  Civil  Service  and  similar  laws. 

There  are  a  great  many  Federal  offices  the  term  of  which  is 
not  fixed  by  law  or  expressly  made  to  depend  upon  good  behavior. 
In  such  cases  it  seems  that  the  power  to  appoint  carries  the  power 
to  remove,  and  this  gives  still  further  power  to  the  party  in  con- 
trol of  the  government. 

Powers  in  Connection  with  Legislation. 

It  is  the  duty  of  the  President,  from  time  to  time,  to  give  infor- 
mation to  Congress  as  to  the  state  of  the  Union,  and  make  recom- 
mendations as  to  needed  legislation.  This  duty  he  discharges  by 
sending  to  Congress  messages  at  various  times.  Usually  the  most 
important  of  these  are  those  sent  in  at  the  meeting  of  each  session 
of  Congress.  They  are  state  papers  of  great  value  and  impor- 
tance, indicating  the  policy  of  the  administration  and  its  attitude 
toward  all  public  questions. 

The  President  may,  when  necessary,  convene  both  or  either 
house  of  Congress,  and  if  they  can  not  agree  as  to  adjournment, 
he  may  adjourn  them  to  such  a  time  as  he  may  see  fit 

He  has  the  veto  power,  which  more  closely  identifies  him  with 
the  legislative  department,  and,  in  reality,  gives  to  him  a  larger 
share  in  determining  what  the  law  shall  be  than  to  any  other  one 
person.  His  right  to  send  messages  and  to  make  official  sugges- 
tions to  Congress  gives  him  a  very  appreciable  share  in  initiating 
measures  of  which  he  approves,  and  the  veto  power  gives  a  very 
large  opportunity  to  prevent  the  enactment  of  measures  of  which 
he  does  not  approve. 

Intercourse  with  Foreign  Nations. 

The  President  is  also  the  officer  designated  to  receive  ambassa- 
dors and  other  public  ministers.  This,  and  his  power  to  nominate 
the  representatives  of  this  government  in  foreign  States,  makes 
him  practically  the  medium  of  communication  between  the  United 
States  and  all  other  governments  and  peoples. 

In  addition  to  the  duties  enumerated,  he  is  charged  with  the 
responsibility  of  enforcing  the  laws  generally.  So  his  time  is 
fully  occupied  with  matters  great  and  important  enough  to  sat- 
isfy the  cravings  of  the  most  ambitious. 


THE  UNITED  STATES  GOVERNMENT.  59 

JUDICIAL  DEPARTMENT. 
Judicial  Function. 

In  order  that  the  will  of  the  sovereign,  as  announced  by  the 
proper  agencies,  may  be  practically  effective,  it  is  essential  that 
there  be  some  sanction  attached;  that  is,  there  must  be  either 
reward  for  conformity  to  the  established  rule  or  penalty  for  de- 
parture from  it.  These  would  sometimes  be  useless  unless  there 
were  some  method  provided  for  applying  them  to  individual  con- 
duct. This  application,  to  be  just,  involves  investigation  as  to 
the  particular  conduct  under  consideration,  and  ascertaining  the 
truth  concerning  it.  "When  this  truth  is  ascertained,  the  conduct, 
as  it  is  found  to  exist,  must  be  compared  with  the  announced  legal 
standards,  and  the  sanctions  antecedently  provided  for  such 
conduct,  whether  of  approval  or  disapproval,  must  be  authorita- 
tively applied  and  the  result  announced.  Then  this  result  must 
be  enforced.  This  process  involves  essentially  different  powers 
and  functions  from  those  involved  in  making  laws.  In  our  gov- 
ernment they  are  exercised  by  a  separate  department.  These 
powers  are  designated  the  judicial  function,  and  the  department 
exercising  them  is  the  Judicial  Department.  This  department 
consists  of  tribunals  created  by  the  sovereign,  and  known  as 
courts.  The  duty  of  these  tribunals  is  to  investigate  and  deter- 
mine the  nature  of  individual  conduct  and  to  determine  its  con- 
formity or  non-conformity  to  the  law,  and  to  apply  to  it  the 
sanctions  of  the  law  and  authoritatively  announce  the  conclusion 
thus  arrived  at;  and,  finally,  to  set  in  motion  and  superintend 
the  executive  agents  of  the  government  in  enforcing  such  de- 
cision. 

Thus  it  is  seen  that  the  judicial  function  of  the  government 
deals  with  the  particular  conduct  of  particular  persons,  and  acts 
directly  upon  such  persons,  or  their  conduct,  or  both,  and  thai 
in  doing  this  it  exercises  three  distinct  powers: 

(1)  The  power  to  hear  and  investigate; 

(2)  the  power  to  determine  the  truth  of  the  matter  and  to 
apply  to  it  the  sanctions  of  the  law ;  and 

(3)  the  power  to  have  the  conclusion  thus  arrived  at  enforced 
through  the  proper  agencies. 

In  our  governments,  both  State  and  Federal,  there  are  numer- 
ous classes  of  courts,  each  class  having  power  to  exercise  the  judi- 


60  AMERICAN   ELEMENTARY  LAW. 

cial  function  as  to  designated  cases.  This  authority  of  each  class 
of  courts  to  act  for  and  to  represent  the  sovereign  in  the  exer- 
cise of  judicial  functions  in  the  designated  cases  is  the  jurisdic- 
tion of  that  class  of  courts.  The  sovereign  creating  each  court 
determines  how  much  and  what  judicial  power  it  shall  have. 
"Within  the  power  thus  delegated  the  court  is  the  duly  authorized 
agent  of  the  sovereign,  and  all  the  power  of  the  government  is 
pledged  to  uphold  and  maintain  it.  Beyond  these  limits  the  court 
is  without  authority,  and  its  action  is  void. 

Jurisdiction  is  classified  in  different  ways,  according  to  the 
basis  of  separation.  Of  these,  the  two  following  classifications 
are  most  important  to  us  now :  First,  into  original  and  appellate ; 
second,  into  exclusive  and  concurrent. 

Original  jurisdiction  is  the  power  to  hear  and  determine  a  case 
in  the  first  instance,  to  originally  entertain  and  dispose  of  the 
suit.  Appellate  jurisdiction  is  the  power  vested  in  a  superior 
court  to  rehear  a  case  which  has  been  tried  in  some  inferior  tri- 
bunal and  correct  any  errors  which  may  have  occurred  in  its 
progress.  Exclusive  jurisdiction  is  the  exclusive  power  to  hear 
cases  of  certain  kinds ;  no  other  court  but  the  one  under  consider- 
ation, or  the  class  of  courts  to  which  it  belongs,  having  such  power. 
Concurrent  jurisdiction  exists  when  courts  of  different  classes 
have  the  right  to  hear  and  determine  the  same  case  or  cases. 

Judicial  Power  of  the  United  States  Government. 

As  all  the  powers  possessed  by  the  United  States  Government 
are  conferred  upon  it  by  the  Federal  Constitution  and  its  Amend- 
ments it  follows  that  it  has  no  judicial  power  except  such  as 
is  thus  granted.  Within  the  scope  of  this  delegated  authority 
Congress  may  create  courts  and  confer  jurisdiction  upon  them. 
Beyond  that  it  cannot  go. 

That  we  may  get  the  extent  of  this  power  properly  in  mind 
we  will  give  the  provisions  of  the  original  constitution  and  the 
several  amendments  with  reference  to  judicial  authority  and 
then  summarize  these. 

Article  HI,  Constitution  of  the  United  States. 

"Section  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court  and  in  such  inferior  courts  as  Con- 
gress may,  from  time  to  time,  ordain  and  establish.     The  judges, 


THE  UNITED  STATES  GOVERNMENT.  61 

both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during 
their  continuance  in  office. 

Section  2.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity,  arising  under  this  Constitution;  the  laws  of  the 
United  States  and  treaties  made,  or  which  shall  be  made,  under 
their  authority;  to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  which  the  United  States  shall  be 
a  party;  to  controversies  between  two  or  more  States;  between 
a  State  and  citizens  of  another  State;  between  citizens  of  differ- 
ent States,  between  citizens  of  the  same  State  claiming  land  under 
grants  of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases  be- 
fore mentioned,  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  ftict,  with  such  exceptions  and  under 
such  regulations  as  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury ;  and  such  trial  shall  be  held  in  the  State  where  said 
crimes  shall  have  been  committed ;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  Congress 
may  by  law  have  directed." 

The  foregoing  is  the  judiciary  article  of  the  Constitution,  as 
originally  adopted  omitting  only  the  sections  as  to  treason. 

It  was  objected  that  there  were  not  restrictions  enough  around 
the  judiciary,  and  several  amendments  to  cure  these  defects  were 
proposed  and  adopted,  as  follows: 

Amendment  IV.  The  right  of  the  people  to  be  secured  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall  issue 
but  upon  probable  cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized. 

Amendment  V.  No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous,  crime,  unless  on  a  presentment  or  indict- 


62  .  AMERICAN   ELEMENTARY   LAW. 

ment  of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  militia,  when  in  the  actual  service  in  time  of  war 
or  public  danger;  nor  shall  any  person  be  subject  for  the  same 
offense  to  be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  he 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

Amendment  VI.  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  of  a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained  by 
law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion; to  be  confronted  with  the  witnesses  against  him;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defense. 

Amendment  VII.  In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined,  in  any  court  of  the  Ufiited  States,  than  according 
to  the  rules  of  the  common  law. 

Amendment  XI.  The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State. 

These  constitutional  provisions  and  acts  of  Congress,  passed  in 
pursuance  thereof,  constitute  the  plan  made  by  the  people  of  the 
United  States  for  exercising  their  judicial  functions. 

Summarizing  these  we  find  that  the  Judicial  Power  of  the 
United  States  Government  includes  and  is  limited  to  the  following 
matters : 

(1.)  To  all  cases  in  law  or  in  equity  arising  under  the  Consti- 
tution and  laws  of  the  United  States  and  treaties  made,  or  which 
shall  be  made,  under  its  authority. 

(2.)  To  all  cases  affecting  ambassadors  and  other  public  minis- 
ters and  consuls. 

(3.)   To  all  cases  of  Admiralty  and  Maritime  jurisdiction. 

(4.)  To  controversies  to  which  the  United  States  shall  be  a 
party. 


THE  UNITED  STATES  GOVERNMENT.  63 

(5.)  To  controversies  between  two  or  more  States. 

(6.)  Between  a  State  and  citizens  of  another  State. 

(7.)  Between  citizens  of  different  States. 

(8.)  Between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States. 

(9.)  Between  a  State,  or  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects. 

Federal  Judicial  System. 

The  judicial  power  belonging  to  the  Federal  Government  is 
divided  among  a  number  of  different  classes  of  courts  which, 
taken  collectively,  constitute  the  Federal  Judicial  System. 

It  is  noticeable  that  only  one  court  is  provided  for  by  name  in 
the  Constitution,  and  the  number  or  qualifications  of  judges  for 
that  court  are  not  given,  and  only  two  classes  of  cases  are  placed 
within  its  jurisdiction :  those  in  which  ambassadors,  ministers,  or 
consuls  are  to  be  affected,  or  in  which  a  State  is  a  party.  As  to 
all  other  matters.  Congress  is  left  free  to  provide.  This  gives  great 
elasticity  to  the  system,  and  enables  Congress  to  provide  such 
courts  and  to  give  them  such  jurisdiction  within  the  limits  of  the 
powers  of  the  Federal  government  as  the  development  of  the 
country  shall  require. 

While  this  freedom  exists  as  to  the  power  to  be  conferred  upon 
the  different  courts,  there  are  several  provisions  in  the  Constitu- 
tion which  are  quite  restrictive  as  to  the  methods  of  procedure 
in  these  courts  when  created.  Thus,  the  differences  between  Law 
and  Equity  are  recognized,  and  it  is  held  that  this  recognition 
requires  the  continuance  of  the  distinction ;  and  that  the  refer- 
ences to  trial  by  jury  mean  a  jury  of  twelve  men  according  to 
the  course  of  the  common  law,  etc. 

Congress  has  passed  several  judiciary  acts  since  the  foundation 
of  the  government,  each  providing  such  inferior  courts  as  the  in- 
terests of  the  country  seemed  to  demand.  The  system  now  exist- 
ing consists  of  the  Supreme  Court,  provided  by  the  Constitution, 
nine  Circuit  Courts  of  Appeal,  a  large  number  of  Circuit  Courts, 
a  still  larger  number  of  District  Courts,  United  States  Commis- 
sioners, and  a  number  of  Courts  of  Claims  of  different  designa 
tions,  and  courts  for  the  District  of  Columbia. 

Each  class  of  courts  thus  created  has  certain  classes  of  cases 


64  AMERICAN   ELEMENTARY  LAW. 

which  it  may  try  and  determine,  and  has  no  power  over  other 
cases  or  controversies  not  embraced  in  such  classes. 

Jurisdiction  of  Federal  Courts. 

In  considering  this  matter  we  will  limit  our  discussion  to  those 
tribunals  which  constitute  the  Federal  Judicial  System  proper 
and  in  dealing  with  these  we  will  begin  with  the  lowest  and  pro- 
ceed to  the  highest. 

District  C&urts. — These  courts  have  original  jurisdiction  over 
the  following  matters: 

(1.)  Of  all  criminal  cases  under  Federal  laws  which  do  not 
receive  capital  punishment. 

(2.)  Of  all  suits  under  the  Federal  laws  for  penalties  and  for- 
feitures. 

(3.)  Of  all  common  law  actions  by  the  United  States,  or  their 
officers  in  their  official  capacity. 

(4.)  Of  all  cases  under  the  postal  laws. 

(5.)  Of  all  equitable  proceedings  to  collect  United  States  reve- 
nue from  the  land  of  the  delinquent. 

(6.)   Of  all  Admiralty  and  Prize  cases. 

(7.)  Of  all  suits  of  aliens  for  "torts,"  when  in  violation  of  the 
law  of  nations. 

(8.)  Of  proceedings  under  the  "Civil  Rights"  laws. 

(9.)  Of  Bankruptcy  proceedings. 

There  are  some  other  unimportant  matters. 

Circuit  Courts. — The  Federal  courts  having  the  largest  original 
jurisdiction  are  the  circuit  courts.  Of  these  are  a  great  number, 
distributed  throughout  the  Union  and  sitting  at  such  places  as 
provided  by  law.  They  may  be  held  by  Justices  of  the  Supreme 
Court,  by  circuit,  or  by  district  judges.  Usually  they  are  held 
by  the  latter. 

The  jurisdiction  of -these  courts  is  extensive  and  important.  In 
some  cases,  as  those  arising  under  the  patent  and  copyright  laws, 
it  is  exclusive  of  both  the  State  courts  and  other  Federal  courts, 
and  this  without  reference  to  the  amount  in  controversy;  that, 
is,  all  litigation  regarding  patent  rights  and  copyrights  must 
be  begun  in  a  circuit  court  of  the  United  States,  and  can  not  be 
tried  in  any  other.  In  some  cases  it  is  exclusive  as  to  State 
courts,  but  concurrent  with  Federal  district  courts,  as  in  some 
proceedings  for  penalties  and  forfeitures  under  Federal  laws, 


THE  UNITED  STATES  GOVERNMENT.  65 

and  some  arising  under  the  "Civil  Rights"  acts.  In  some  cases 
it  is  concurrent  with  the  State  courts,  but  exclusive  as  to  all  other 
Federal  courts,  as  in  suits  between  citizens  of  different  States 
involving  two  thousand  dollars  or  more.  Sometimes  the  juris- 
diction depends  upon  the  citizenship  and  residence  of  the  parties, 
and  sometimes  upon  the  nature  of  the  controversy.  "We  can  not 
go  into  matters  in  detail,  or  even  with  technical  accuracy;  but, 
in  general  terms,  the  jurisdiction  of  these  courts,  Federal  Circuit 
Courts,  is  as  follows : 

(1.)  Cases  in  which  the  United  States  are  plaintiffs  or  peti- 
tioners. 

(2.)  Cases  "between  citizens  of  the  same  State  claiming  land 
under  grants  of  different  States. ' '  In  neither  of  these  classes  of 
cases  is  the  amount  in  controversy  considered  in  determining 
jurisdiction. 

(3.)  Cases  "arising  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority, ' '  which  involve  $2,000  or  over. 

(4.)  Cases  "in  which  there  is  a  controversy  between  citizens 
of  different  States,"  which  involve  $2,000  or  over. 

(5.)  Cases  "between  citizens  of  a  State  and  foreign  States, 
citizens  or  subjects,"  which  involve  $2,000  or  over. 

(6.)  "All  crimes  and  offenses  cognizable  under  authority  of 
the  United  States,  except  as  otherwise  provided  by  law,  and  con- 
current jurisdiction  with  the  district  courts  of  the  crimes  ancjl 
offenses  cognizable  by  them." 

(7.)  Cases  arising  under  the  patent  and  copyright  laws  of  the 
United  States. 

The  jurisdiction,  in  the  cases  mentioned  in  the  classes  3,  4  and 
5,  is  dependent  upon  the  amount  in  controversy,  which  must,  in 
every  instance,  be  two  thousand  dollars  or  over,  exclusive  of 
costs.  In  all  these  cases,  that  is,  in  classes  3,  4  and  5,  the  juris- 
diction of  these  Federal  courts  is  concurrent  with  the  courts  of 
the  several  States  having  jurisdiction  from  the  States  to  try  sim- 
ilar matters.  If  the  complainant  shall  go  into  the  Federal  court, 
his  complaint  may  be  tried  there ;  if  into  the  proper  State  court, 
his  complaint  may  be  tried  there. 

"While  this  last  statement  is  correct,  and  the  State  court  may 
try  it,  still  it  is  in  the  power  of  the  defendant,  by  taking  the 
5 


66  AMERICAN  ELEMENTARY  LAW. 

proper  steps  at  the  proper  time,  to  remove  a  case  of  either  of  the 
kinds  now  under  consideration  from  a  State  court  into  the  Fed- 
eral circuit  court  of  that  district.  The  details  of  this  proceeding 
do  not  concern  us.  When  the  Federal  statute  is  complied  with, 
it  destroys  the  jurisdiction  of  the  State  court,  and  transfers  the 
case  to  the  Federal  court  for  further  action. 

The  Circuit  Courts  also  have  some  special  powers  as  to  penal- 
ties, which  need  not  be  considered.  They  have  appellate  jurisdic- 
tion in  Bankruptcy  matters. 

Circuit  Court  of  Appeals. — These  are  the  next  highest  courts 
in  the  Federal  judicial  system.  There  are  nine  of  them,  one  in 
each  of  the  several  circuits  assigned  to  the  judges  of  the  Supreme 
Court.  Theoretically,  each  of  these  courts  is  composed  of  the 
Supreme  Court  Justice  in  whose  circuit  it  is  held  and  two  circuit 
judges  of  that  circuit ;  but,  in  reality,  the  members  of  the  Supreme 
Court  are  fully  employed  with  their  duties  in  that  court,  and  do 
not  sit  in  these  courts.  The  statute  creating  the  courts  provides 
that  they  may  be  held  without  the  presence  of  the  Supreme 
Gourt  Justice,  either  by  three  circuit  judges,  or  by  two  circuit 
judges  and  a  district  judge,  or  by  one  circuit  judge  and  two  dis- 
trict judges,  and  the  courts  are  composed  in  this  way. 

Circuit  judges  are  judges  appointed  by  the  President  and  con- 
firmed by  the  Senate,  whose  primary  duty  it  is  to  hold  Circuit 
Courts,  and  district  judges  are  appointed  in  the  same  way  to  hold 
district  courts ;  but  the  statutes  confer  upon  both  circuit  and  dis- 
trict judges  the  power  to  sit  upon  the  Circuit  Court  of  Appeals 
when  called  upon  to  do  so,  and  to  hold  circuit  courts  and  district 
courts.  So,  there  is  great  elasticity  in  the  system,  so  far  as  the 
constituent  members  of  the  respective  courts  are  concerned. 

Circuit  Courts  of  Appeal  have  no  original  jurisdiction.  All 
their  power  is  to  revise  cases  tried  in  the  circuit  and  district 
courts.  This  appellate  jurisdiction  extends  to  all  cases  tried  in 
either  of  said  courts  in  which  the  appeal  does  not  go  directly  to 
the  Supreme  Court,  as  set  out  hereafter.  This  jurisdiction  is 
said  to  be  final  in  all  cases  which  are  brought  into  the  Federal 
courts  by  reason  of  the  diverse  citizenship  or  alienage  of  the  par- 
ties, in  all  patent  cases,  in  all  cases  arising  under  the  revenue 
laws,  in  all  criminal  cases  not  imposing  a  death  penalty,  and  in 
Admiralty  cases.    As  hereafter  explained,  this  so-called  final 


THE  UNITED  STATES  GOVERNMENT.  67 

jurisdiction  is,  in  fact,  subject  to  review  by  the  Supreme  Court. 
All  other  eases  decided  by  this  court  may  be  carried  to  the  Su- 
preme Court  for  revision  under  express  provisions  of  the  statute 
provided  they  involve  one  thousand  dollars  or  over. 

Supreme  Court. — The  Supreme  Court  holds  its  sessions  at 
Washington  City  and  consists  of  nine  members,  one  called  the 
Chief  Justice,  who  is  its  presiding  judge,  and  eight  Associate 
Justices.  These  are  appointed  by  the  President,  subject  to  the 
approval  of  the  Senate.  They  hold  for  life,  or  during  good  be- 
havior. This  is  the  highest  court  in  the  United  States,  if  not  in 
the  world.     It  has  both  original  and  appellate  jurisdiction. 

Its  original  jurisdiction  includes  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls,  and  those  in  which  a  State  is 
a  party.  As  to  ambassadors,  this  jurisdiction  is  not  only  original, 
but  it  is  also  exclusive,  in  the  strictest  sense.  No  other  court, 
either  Federal  or  State,  can  entertain  such  suits.  As  to  suits*  in 
which  a  state  is  a  party,  the  jurisdiction  is  exclusive  so  far  as 
the  Federal  courts  are  concerned,  no  such  court  having  the  power 
to  entertain  and  try  such  suits  unless  there  be  other  grounds  of 
jurisdiction,  such  as  the  involving  of  a  Federal  question.     » 

Its  appellate  jurisdiction  is  quite  extensive.  It  is  of  three 
kinds: 

(1)  Over  cases  brought  to  this  court  directly  from  Federal 
courts  of  original  jurisdiction,  that  is,  from  district  and  circuit 
courts. 

(2)  Over  cases  that  have  gone  from  Federal  courts  of  original 
jurisdiction  to  the  Circuit  Courts  of  Appeal,  and  which  may  go 
from  there  to  the  Supreme  Court. 

(3)  Over  cases  tried  in  State  courts  and  involving  what  are 
technically  known  as  Federal  questions. 

Taking  them  in  order,  the  first,  that  is,  cases  brought  to  this 
court  directly  from  Federal  courts  of  original  jurisdiction,  covers 
the  following  cases: 

1.  Those  in  which  the  jurisdiction  of  the  trial  court  is  in  ques- 
tion. In  these  cases,  the  question  of  jurisdiction  is  raised  in  the 
lower  court,  and  the  case  is  finally  tried  there ;  then  the  aggrieved 
party  either  takes  the  case  to  the  Supreme  Court  on  the  question 
of  jurisdiction  alone,  or  to  the  Circuit  Court  of  Appeals  upon  the 
whole  case. 


63  AMERICAN    ELEMENTARY   LAW. 

2.  Prize  cases. 

3.  Criminal  cases  in  which  the  death  penalty  is  assessed. 

4.  Cases  involving  the  construction  and  application  of  the  Fed- 
eral Constitution. 

5.  Cases  calling  in  question  the  validity  of  any  act  of  Congress, 
or  the  validity  or  construction  of  any  treaty  of  the  United  States. 

6.  Cases  in  which  a  State  statute  or  constitution  is  attacked  as 
being  contrary  to  the  Federal  Constitution. 

Jurisdiction  of  the  second  of  these  classes  of  cases  extends  to  all 
cases  over  which  the  Circuit  Court  of  Appeals  has  jurisdiction 
which  involve  as  much  as  one  thousand  dollars. 

This  jurisdiction  is,  however,  exercised  differently  in  different 
cases.  There  are  certain  classes  of  cases,  which  have  been  given 
in  connection  with  Circuit  Courts  of  Appeals,  in  which  it  is  said 
the  jurisdiction  of  these  courts  is  ' '  final. ' '  But  it  is  further  pro- 
vided "that  in  any  case  pending  in  the  Circuit  Court  of  Appeals, 
that  court  may  certify  to  the  Supreme  Court  any  questions 
or  propositions  of  law  arising  in  the  case,  concerning  which  it  de- 
sires the  instructions  of  the  Supreme  Court;"  and  further,  that 
the  Supreme  Court  may,  in  its  discretion,  require  the  Circuit 
Court  of  Appeals  to  certify  to  the  Supreme  Court, ' '  for  its  review 
and  determination,"  any  case  pending  or  decided  by  the  Circuit 
Court  of  Appeals  in  which  the  decision  would  be  otherwise  final. 
So,  it  is  possible  for  the  Supreme  Court,  in  this  way,  to  revise  any 
decision  or  determination  arrived  at  in  the  Circuit  Court  of  Ap- 
peals, which  is  called  final. 

All  cases  tried  by  the  Circuit  Courts  of  Appeals,  and  which  do 
not  fall  into  the  class  above  considered,  may  be  revised  by  the  Su- 
preme Court,  provided  the  matter  in  controversy  exceeds  one 
thousand  dollars,  exclusive  of  costs. 

Jurisdiction  of  the  third  of  these  classes  of  cases  includes  the 
power  to  review  "the  final  judgment  or  decree  in  any  suit  in  the 
highest  court  of  a  State  in  which  a  decision  can  be  had,  in  each  of 
the  following  cases: 

1.  When  the  validity  of  a  treaty  or  statute  of  the  United  States 
is  questioned  in  the  State  court,  and  the  decision  is  against  such 
validity. 


THE  UNITED  STATES  GOVERNMENT.  69 

2.  When  any  authority  that  is  claimed  under  the  United  States 
government  is  called  in  question  in  a  State  court,  and  the  exist- 
ence of  the  authority  is  denied. 

3.  Where  a  State  statute  is  attacked  in  a  State  court  as  being 
contrary  to  the  Federal  Constitution,  or  the  treaties  and  acts  of 
Congress,  and  the  statute  is  sustained. 

4.  Where  authority  exercised  under  a  State  is  attacked  in  a 
State  court  as  contrary  to  the  Federal  Constitution,  treaties,  or 
laws,  and  the  authority  is  sustained. 

All  these  cases  raise  " Federal  questions,"  and  the  right  of  final 
decision  of  all  such  questions  is  in  the  Supreme  Court  of  the 
United  States.  It  is  immaterial  whether  such  a  question  arise  in 
a  criminal  or  civil  case,  in  a  high  or  low  court.  When  it  has  been 
passed  upon  by  the  last  State  court  to  which  the  case  can  be  car- 
ried, and  has  been  decided  there  adversely  to  the  power  of  the 
Federal  government,  the  case  can,  by  proper  proceeding,  be  taken 
directly  to  the  Supreme  Court  of  the  United  States  for  final  deci- 
sion. 

Federal  Practice. — The  practice  in  the  Federal  courts  is  accord- 
ing to  the  recognized  rules  of  the  common  law  and  equity  courts, 
as  it  existed  at  the  time  of  the  organization  of  the  Federal  govern- 
ment, with  some  statutory  modifications.  The  most  important 
modification  is  that,  in  the  Common  Law  cases,  the  rules  of  plead- 
ing and  practice  shall  conform  to  the  law  of  the  particular  State 
in  which  the  court  is  being  held,  so  far  as  may  be.  The  extent  of 
this  conformity  is  left  largely  to  the  discretion  of  the  Federal 
judge  trying  the  case.  This  rule  of  practice  does  not  apply  to 
Equity  cases. 

The  foregoing  pages  present,  in  very  general  outline,  the  plan 
of  the  Federal  government  and  its  several  powers.  They  show, 
to  some  extent,  recreative,  perpetuative,  and  functional  parts  of 
the  Federal  Constitution. 

Its  remaining  parts  are,  in  the  main,  restrictive,  consisting 
principally  of  express  limitations  upon  the  powers  of  the  Federal 
and  State  governments,  and  guarantees  to  the  latter  and  to  the 
citizens  of  each.  The  express  limitations  upon  the  powers  of  the 
general  government  will  be  enumerated  here,  and  those  portions 


70  AMERICAN   ELEMENTARY  LAW. 

relating  directly  to  the  States  and  citizens  will  be  postponed  until 
we  have  taken  up  the  State  governments  proper,  and  will  then  be 
treated  as  the  concluding  portion  of  this  general  division  of  our 
subject. 

Express  Limitations  in  the  United  States  Constitution  upon  the  Pow- 
ers of  the  Federal  Government. 

1.  On  regulating  suffrage.    (Fifteenth  Amendment,  Section  1.) 

2.  On  requiring  tests  for  office.    (Article  VI,  Section  3.) 

3.  On  granting  titles  of  nobility.    (Article  I,  Section  9.) 

4.  As  to  religious  matters.     (First  Amendment.) 

5.  As  to  freedom  of  the  press.     (Idem.) 

6.  As  to  assembling  of  the  people.     (Idem.) 

7.  As  to  petitions  for  redress.     (Idem.) 

8.  As  to  the  bearing  of  arms  by  the  people.  (Second  Amend- 
ment.) 

9.  As  to  suspension  of  writ  of  habeas  corpus.  (Article  I,  Sec- 
tion 9.) 

10.  As  to  bills  of  attainder  and  ex  post  facto  laws.  (Article 
I,  Section  9.) 

11.  As  to  quartering  soldiers  in  private  houses.  (Third 
Amendment.) 

12.  As  to  denial  of  due  process  of  law.    (Fifth  Amendment.) 

13.  As  to  taking  private  property  for  public  use.  (Fifth 
Amendment.) 

14.  As  to  seizures  and  searches.    (Fourth  Amendment.) 

15.  As  to  taxation.    (Article  I,  Section  9,  No.  5.) 

16.  As  to  expenditures  of  public  money.  (Article  I,  Section 
9,  No.  7.) 

17.  As  to  slavery.    (Thirteenth  Amendment.) 

18.  As  to  procedure  in  criminal  cases.  (Fourth,  Fifth,  Sixth, 
and  Eighth  Amendments.) 

19.  As  to  civil  procedure.    (Seventh  Amendment.) 

By  act  of  Congress  passed  since  the  preparation  of  this  text, 
and  which  goes  into  effect  Jan.  1,  1912,  the  jurisdiction  of  sev- 
eral of  the  Federal  Courts  has  been  greatly  changed.  This  act 
is  given  in  the  appendix. 


CHAPTER  IL 

STATE  GOVERNMENTS. 
The  State  Governments. 

The  several  States  have  inherent  in  them  all  the  powers  that 
pertain  to  independent  sovereignties  which  are  not  given  over  to 
the  Federal  government  or  denied  to  or  withheld  from  them  by 
the  Federal  Constitution.  (Constitution  of  the  United  States, 
Articles  IX  and  X.) 

The  original  thirteen  States,  located  along  the  Atlantic  sea- 
board, were  primarily  separate  and  distinct  colonies,  planted  by 
the  English  Government  at  different  times  and  under  different 
charters.  At  their  inception  they  were  dependent  upon  the 
mother  country  alike  for  protection  and  support.  As  they  in- 
creased in  population  and  developed  their  resources,  it  was 
natural  that  their  isolation  and  necessary  dependence  upon  them- 
selves for  many  things  should  beget  in  them  a  general  spirit  of  in- 
dependence in  governmental  affairs. 

This  natural  law  of  growth  asserted  itself  toward  the  close  of 
the  eighteenth  century;  and,  moved  by  a  common  impulse,  they 
refused  longer  to  submit  to  British  political  supremacy,  and  by 
the  success  of  their  united  efforts  demonstrated  that  the  war  was 
a  revolution,  and  not  a  rebellion,  that  they  were  patriots,  and  not 
rebels.  Having  thus,  by  making  common  cause,  established  that 
they  were  independent  of  the  English  throne,  they  undertook  to 
guarantee  further  security  against  foreign  foes  by  entering  into 
a  compact  or  confederacy.  This  proving  unsatisfactory,  they 
"formed  a  more  perfect  union,"  under  the  Federal  Constitution. 
This  instrument,  and  the  government  created  by.it,  we  have 
already  briefly  considered. 

In  forming  this  union  the  States  did  not  surrender  their  poli- 
tical autonomy  nor  all  of  their  sovereign  prerogatives.  Each  re- 
mained a  State  having  large  powers  and  high  responsibilities,  and 
the  general  government  is  one  of  united  States,  not  an  amalgama- 
tion of  States.    This  was  distinctly  understood  when  the  Consti- 


72  AMERICAN  ELEMENTARY  LAW. 

tution  was  formed  and  adopted,  but  fearing  that  there  might  be  a 
mistake  or  misconception  on  the  subject,  the  tenth  amendment  to 
the  Constitution  was  submitted  and  adopted.  So  that  since  that 
time,  in  the  Constitution  itself,  it  is  expressly  provided  that ' '  the 
powers  not  delegated  to  the  United  States,  by  the  Constitution  nor 
prohibited  by  it  to  the  states,  are  reserved  to  the  states  respect- 
ively, or  to  the  people." 

As  we  have  seen,  all  of  the  powers  delegated  to  the  Federal  gov- 
ernment are  national  in  their  character.  That  government  has  no 
jurisdiction  over  local  or  domestic  affairs.  It  is  therefore  imper- 
ative that  each  State,  or,  more  properly,  the  people  in  each  State, 
shall  organize  and  maintain  a  system  of  government  fully 
equipped  and  adequate  to  meet  efficiently  all  demands  made  upon 
sovereignty  in  the  control  of  local  matters.  These  domestic  or  in- 
ternal affairs  are  of  incalculable  importance,  and  their  neglect 
would  mean  local  anarchy  and  inevitable  disaster.  "While  it  is 
true  that  the  several  States  could  not  successfully  meet  the  re- 
sponsibilities resting  on  the  National  government  and  discharge 
its  functions,  it  is  equally  true  that  the  National  government,  as 
constituted  in  and  created  by  the  Constitution,  could  not  exist 
unless  supplemented  and  maintained  by  the  several  State  organ- 
izations. Their  conditions  of  dependence  and  advantage,  while 
differing  in  kind,  are  essentially  mutual.  Neither  could  maintain 
itself  without  the  other. 

The  Federal  Constitution  guarantees  to  each  State  a  republican 
form  of  State  government.  It  also  guarantees  that  it  shall  not 
be  divided  into  more  than  one  State,  or  combined  with  any  other 
State  without  its  consent.  It  also  undertakes  to  protect  each 
against  invasion  by  any  enemy,  and,  upon  proper  application  of 
its  officers,  against  domestic  violence.  Other  guarantees  will  be 
considered  later. 

Since  the  formation  of  the  United  States  government,  it  has  ac- 
quired, by  different  methods,  large  accessions  of  territory,  and, 
under  the  authority  of  the  constitution,  numerous  States  have 
been  formed  therein  and  have  been  admitted  into  the  Union.  The 
Republic  of  Texas  came  in  by  mutual  agreement  of  the  sovereigns; 
the  Texans  on  the  one  hand,  and  the  people  of  the  United  States 
on  the  other.  It  is  an  accepted  constitutional  rule  that  as  these 
States  come  into  the  Union  they  take  just  the  same  position 


STATE  GOVERNMENTS.  73 

toward  the  Federal  government,  have  just  the  same  privileges  and 
powers,  and  owe  just  the  same  duties  as  did  the  original  States 
upon  the  formation  of  the  Union.  So  that,  in  our  discussion,  we 
need  make  no  special  reference  to  one  class  as  distinct  from  the 
other. 

"We  will  now  proceed  to  discuss  generally  the  plan  and  func- 
tions of  the  State  governments  in  the  Union. 

Form  of  Government  in  the  Several  States. 

In  form,  these  several  governments  are  republican.  The  Fed- 
eral Constitution  guarantees  to  them  this  form.  Just  what  is  a 
republican  form  of  government  has  never  been  authoritatively 
decided.  It  would  seem,  however,  to  carry  with  it  the  substantial 
characteristics  and  qualities  of  the  governments  existing  in  the 
several  States  at  the  time  the  Constitution  was  adopted.  "What 
modifications  of  this  form  or  departures  from  it  would  make  the 
respective  State  governments  unrepublican  can  not  be  stated  with 
accuracy.  This  much  may,  however,  be  assumed  with  certainty, 
that  no  government  could  be  republican  which  does  not  recognize 
sovereignty  as  vested  in  the  people  to  be  governed,  and  in  which 
they  do  not  substantially  control  and  rule  in  all  governmental  af- 
fairs, either  by  direct  vote  or  through  representatives  selected  by 
themselves;  and  which  does  not  provide  for  the  reasonably-effi- 
cient exercise  of  the  three  great  political  functions  of  legislating, 
adjudging  and  applying  legal  sanctions,  and  executing  the  laws. 
"When  we  speak  of  sovereignty  as  vested  in  the  people,  we  must 
not  be  understood  as  meaning  in  each  and  every  person  subject  to 
the  government,  but  in  a  portion  of  them  sufficiently  large  and 
representative  to  insure  that  the  government  will,  in  fact,  repre- 
sent the  popular  will  and  subserve  the  public  interests  as  distin- 
guished from  the  will  and  interest  of  a  minority. 

The  government  existing  in  each  State  at  the  organization  of 
the  Union  possessed  these  characteristics,  and  each  that  has  en- 
tered the  Union  since  has  also  had  them. 

State  Constitutions. 

Each  of  the  State  governments  is  based  upon  a  written  consti- 
tution, adopted  by  the  qualified  voters  in  the  State.  These  instru- 
ments are  subordinate  to  the  Federal  Constitution,  laws  and 
treaties ;  but,  with  that  limitation,  each  is  the  supreme  law  of  the 


74  AMERICAN   ELEMENTARY   LAW. 

State  ordaining  it.  By  them  all  State  governmental  agencies  are 
created,  and  they  constitute  at  once  the  source  and  limits  of  their 
respective  powers.  We  find  in  these  constitutions  creative,  per- 
petuative,  functional,  and  restrictive  provisions.  They  call  the 
State  government  into  being,  provide  for  its  perpetual  existence, 
declare  the  powers  and  duties  of  its  several  departments  and  offi- 
cers, and  limit  governmental  action  along  designated  lines  by  ex- 
press reservations  of  rights  and  powers  in  the  people  and  by  ex- 
press denials  of  power  to  the  government.  They  all  provide  for 
legislative,  judicial,  and  executive  departments,  and  give,  with 
more  or  less  detail,  the  powers  and  duties  of  the  respective  offices 
created  in  each.  The  general  nature  of  these  several  departments 
and  their  respective  functions  have  been  considered  in  connection 
with  the  Federal  government,  and  need  not  now  be  dealt  with 
further. 

LEGISLATIVE  DEPARTMENTS. 

The  legislative  functions  of  the  States  are  performed  through 
representative  bodies  known  as  legislatures.  These  consist  of  two 
houses,  one  called  the  senate  and  the  other  called  the  assembly,  or 
house  of  representatives.  The  senate  is  the  smaller  body,  and 
usually  its  members  hold  for  longer  terms  than  members  of  the 
house.  The  members  of  both  houses  are  elected  by  the  persons 
residing  in  their  respective  districts  and  possessing  the  qualifica- 
tions prescribed  by  the  laws  of  the  State.  Each  is  the  judge  of  the 
qualification  and  election  of  its  own  members.  The  senate  is  pre- 
sided over  by  the  lieutenant-governor,  and  the  house  by  a  speaker 
elected  by  the  members  from  among  their  own  number.  Each 
body  has  such  clerks  and  other  subordinate  officers  as  it  shall  pro- 
vide. In  passing  laws,  the  houses  act  separately.  A  majority  vote 
is  necessary  to  pass  any  measure,  and,  in  some  instances,  it  is  pro- 
vided by  law  that  a  larger  vote  shall  be  necessary.  Bills  for" rais- 
ing revenue,  in  most,  if  not  all,  of  the  States,  must  originate  in  the 
house,  but  must  be  concurred  in  by  the  senate  before  becoming 
laws.  Bills  of  all  other  kinds  may  be  introduced  in  either  house 
by  any  member  thereof. 

Before  becoming  a  law,  many,  if  not  all,  of  the  constitutions 
require  that  a  bill  must  be  read  and  voted  upon  favorably  in  each 
house  on  three  separate  days,  and  it  must  then  be  engrossed  and 
signed  by  the  presiding  officer  of  each  house  in  open  session. 


STATE   GOVERNMENTS.  75 

Pending  measures  are  open  for  discussion,  subject  to  the  general 
rules  of  parliamentary  bodies,  or  the  special  rules  adopted  by  the 
house  in  which  the  matter  is  being  considered. 

Bills,  after  being  legally  passed,  must  be  submitted  to  the  gov- 
ernor of  the  State  for  his  action.  If  he  approves  the  act,  and  files 
it  with  the  secretary  of  state,  or  if  he  fails  to  act  upon  it  within  a 
limited  time,  it  becomes  a  law.  If  he  disapproves  it,  he  endorses 
this  fact  upon  it,  giving  his  reasons,  and  returns  it,  with  his  objec- 
tions, to  the  house  in  which  the  bill  originated ;  and,  unless  it  is 
taken  up  and  passed  by  both  houses  by  a  vote  of  two-thirds  or  over 
in  each,  it  is  defeated;  if  it  is  passed  by  such  vote  it  becomes  a 
law,  notwithstanding  the  veto. 

State  legislatures  deal  with  those  matters  not  given  over  or  del- 
egated to  the  Federal  government.  As  to  the  latter,  they  can  not 
legislate.  The  extent  of  their  power  would  be  to  memorialize  Con- 
gress upon  the  subject,  and  thus  seek  to  influence  its  action.  As 
to  certain  matters  in  the  scope  of  the  Federal  authority,  it  has 
been  held  that  the  State  legislatures  could  act  until  Congress  had 
actually  taken  jurisdiction  and  exercised  its  powers.  As  the  gov- 
ernment grows  ®lder,  this  doctrine  is  becoming  of  less  practical 
importance;  for  Congress  is  gradually  extending  its  notice  to 
every  interest  or  matter  within  its  jurisdiction,  and  it  would  now 
be  difficult  to  find  a  subject  upon  which  it  may  rightfully  legis- 
late which  has  not  been  acted  upon  by  it.  So  that  this  is,  even 
now,  rather  a  theoretical  or  speculative  subject  than  one  of  serious 
practical  importance,  though  one  phase  of  it  will  remain  for  con- 
sideration so  long  as  the  government  lasts.  This  is:  What  power 
has  a  State  legislature  over  a  matter  which  is  within  the  jurisdic- 
tion of  Congress,  and  upon  which  it  has  once  acted  and  has  sub- 
sequently repealed  or  annulled  its  laws?  It  depends  somewhat 
upon  the  nature  of  the  matter.  Take  the  subject  of  Bankruptcy : 
The  Constitution  confers  upon  the  Federal  government  the  power 
to  establish  a  uniform  system  of  bankruptcy  throughout  the 
Union.  Congress  has  done  so.  While  this  congressional  legisla- 
tion stands,  the  State  legislatures  can  not  deal  with  the  matter. 
If  the  National  bankrupt  law  shall  hereafter  be  repealed,  can  the 
State  legislature  re-enact  insolvent  laws  operative  within  their 
own  territories  ?    It  seems,  as  to  this  matter,  they  can. 


76  AMERICAN   ELEMENTARY   LAW. 


EXECUTIVE  DEPARTMENTS. 


The  chief  executive  officer  of  the  several  State  governments  is 
called  the  Governor.  He  is  chosen  by  the  direct  vote  of  the  quali- 
fied electors  of  the  State.  His  general  duty  is  the  execution  of  all 
the  laws  in  force  in  the  State.  A  common  constitutional  expres- 
sion on  this  subject  is  "He  shall  cause  the  laws  to  be  faithfully 
executed. ' '  He  is  commander-in-chief  of  the  State  militia  and,  as 
such,  has  control  over  that  body,  except  in  times  of  war,  when  its 
members  are  mustered  into  the  service  of  the  United  States. 

He  usually  has  the  appointment  of  such  State  and  district  offi- 
cers as  are  not  elective,  but  his  appointments  are  subject  to  con- 
firmation or  rejection  by  the  senate. 

He  has  the  pardoning  power.  In  many  States  this  power  is 
vested  in  the  governor  absolutely.  In  others  he  acts  upon  the  ad- 
vice of  or  in  connection  with  a  pardoning  board. 

As  the  chief  executive,  he  is  usually  free  from  any  direct  inter- 
ference with  his  official  action  by  any  other  department  or  officer 
of  the  government,  or  by  any  individual.  He  can  not  be  compelled 
to  do  his  duty,  nor  be  held  personally  responsible  for  any  damage 
resulting  from  his  official  action  or  failure  to  act.  In  his  indi- 
vidual capacity,  he  is  subject  to  suit  or  to  criminal  prosecution  for 
his  personal  wrongs ;  but  officially  he  is  exempt  from  responsibil- 
ity before  the  courts.  His  only  liability  to  punishment  for  official 
wrongs  is  by  impeachment,  before  the  senate,  or  by  defeat,  if  he 
should  be  a  candidate  for  re-election. 

The  qualifications  for  this  office,  the  terms,  and  compensation 
differ  in  different  States. 

Lieutenant  Governor. 

The  next  executive  officer  is  the  lieutenant-governor.  His 
duties  are  to  act  as  governor  in  the  absence,  disqualification,  ina- 
bility, removal  or  death  of  the  governor.  In  most  States  he  is  also 
the  presiding  officer  of  the  senate. 

Divisions  of  the  Executive  Department. 

There  are  several  divisions  of  the  executive  department  in  the 
several  States,  some  having  more  than  others,  and  the  titles  of  the 
several  heads  of  the  same  division  differing  in  different  States. 
They  usually  embrace  the  following : 

(1.)  A  department  of  state,  the  head  of  which  is  usually  desig- 


STATE  GOVERNMENTS.  77 

nated  as  the  secretary  of  state.  He  is  the  keeper  of  the  official 
seal  of  the  State  and  of  the  State  records  proper,  that  is,  of  the 
records  of  the  legislative  department  and  of  the  governor's  office. 
He  issues  all  commissions  to  officers  and  all  proclamations  by  the 
governor. 

(2.)  A  treasury,  the  head  of  which  is  designated  the  State 
treasurer.    He  keeps  and  pays  out  all  State  money. 

(3.)  A  department  of  public  accounts,  presided  over  by  an  offi- 
cer sometimes  called  the  State  comptroller,  sometimes  the  State 
auditor.  In  this  department  are  kept  all  accounts  of  indebtedness 
to  and  by  the  State.  Through  it  all  vouchers  or  drafts  on  the 
treasurer  are  issued  for  money  due  by  the  State.  All  records  as 
to  State  taxes  and  moneys  due  the  State  are  kept  here.  In  short, 
it  is  in  this  department  that  the  general  bookkeeping  of  the  State 
is  done,  where  its  financial  budgets  are  made  out  and  all  financial 
information  is  kept.  The  several  officers  handling  State  funds  are 
required  to  keep  strict  account  of  everything  connected  therewith, 
but  these  finally  find  their  way  into  the  comptroller's  department, 
by  various  systems  of  reports,  and  the  general  results  are  sum- 
marized and  shown  there. 

(4.)  A  department  analogous  to  that  in  the  Federal  govern- 
ment known  as  the  department  of  justice.  There  is  no  general  or 
uniform  designation  of  this  department  in  the  several  States.  Its 
head  is  the  attorney-general,  who  is  chief  legal  adviser  of  the  gov- 
ernor and  all  the  heads  of  the  other  departments.  He  also  repre- 
sents the  State  in  the  more  important  litigation  to  which  it  is  a 
party.  The  prosecution  of  criminal  cases  in  courts  of  original 
jurisdiction  is  usually  left  to  local  officers,  appointed  or  elected 
for  that  purpose,  known  as  district  or  county  attorney  or  com- 
monwealth attorney,  and  by  numerous  other  appropriate  designa- 
tions. These,  in  theory  at  least,  act  under  the  general  supervision 
and  subject  to  the  advice  of  the  attorney-general  of  the  State. 

(5.)  A  department  of  public  education,  which  has  direct  charge 
of  public  educational  matters  within  the  State,  so  far  as  the  com- 
mon schools  are  involved. 

(6.)  A  department  to  deal  with  fire,  life,  and  other  forms  of 
insurance.  The  purpose  of  this  department  is  to  investigate  as  to 
the  solvency  and  business  methods  of  different  insurance  com- 
panies doing  or  seeking  to  do  business  within  the  State,  and  to 


78  AMERICAN  ELEMENTARY  LAW. 

advise  the  governor  and  legislature  concerning  them  and  to  make 
suggestions  as  to  their  proper  regulation,  and  to  take  active  su- 
pervision of  them  and  see  that  the  laws  as  passed  are  obeyed  by 
the  companies. 

(7.)  A  land  department.  This,  of  course,  exists  only  in  those 
States  which  own  and  have  granted  public  lands.  Its  purpose  is 
to  keep  proper  records  and  information  as  to  these  lands,  to  inves- 
tigate the  claims  of  all  persons  desiring  to  acquire  any  parts  of 
them,  whether  the  whole  title  or  a  less  estate,  and  to  prepare  and 
execute,  or  have  executed,  the  proper  conveyances  for  the  land 
when  it  is  to  be  disposed  of  by  the  State. 

Doubtless  there  are  other  departments  in  some  of  the  States,  but 
these  are  the  most  frequent. 

The  manner  of  selecting  the  heads  of  these  several  departments, 
and  the  degree  of  their  subordination  to  the  governor  or  chief 
executive,  differ  in  the  different  States.  In  some  they  are  elected 
by  the  people,  in  some  appointed  by  the  governor,  and  in  others 
some  are  appointed  and  some  are  elected. 

Besides  these  State  offices,  there  are  a  great  many  lower  offices 
belonging  to  the  executive  department.  The  most  important  of 
these  are  sheriffs.  One  sheriff  is  elected  in  each  county,  and  is  the 
chief  executive  of  the  county.  To  him  all  the  commands  of  the 
governor,  as  to  the  execution  of  the  law  in  his  county,  ordinarily 
come.  To  him  all  legal  process  to  be  executed  in  his  county  is  di- 
rected, and  it  is  his  duty  to  carry  out  the  commands  thus  received. 
He  is  the  executive  officer  who  attends  the  higher  courts  held  in 
his  county  and  carries  out  their  lawful  orders  and  decrees.  He  is 
aided  in  all  this  by  deputies  appointed  by  him,  and  in  the  case  of 
necessity,  has  the  power,  under  the  law,  to  summon  any  citizen  or 
number  of  citizens  to  his  assistance.  Constables,  or  bailiffs,  are 
executive  officers  in  still  smaller  territorial  subdivisions,  and  have 
duties,  in  the  county  in  which  their  precinct  lies,  analogous  to, 
but  not  exclusive  of,  the  sheriffs. 

JUDICIAL   DEPARTMENT. 

The  judicial  power  of  the  several  States  extends  to  all  matters 
not  exclusively  within  the  jurisdiction  of  the  Federal  courts  under 
the  Federal  Constitution  and  treaties.  A  great  many  matters  are 
within  the  exclusive  jurisdiction  of  the  State  courts.  A  great 
many    are    within    the    concurrent    jurisdiction    of    courts    of 


the  two  governments,  and  quite  a  number  are  within  the  exclusive 
jurisdiction  of  the  Federal  courts. 

Taking  these  up  in  reverse  order,  we  fin  i  : 

(1)  That  the  Federal  courts  have  jnri  -  n  exclusive  of  the 
State  courts  in  the  following  classes  of  cases : 

1.  Suits  affecting  ambassadors,  other  public  mii^..-i  and 
consuls. 

2.  Suits  between  two  or  mor^ 

3.  Suits  between  the  United  States  and  a  State, 

4.  Suits  against  the  United  States. 

5.  Suits  to  enforce  rights  not  existing  under  general  law,  but 
dependent  exclusively  upon  acts  of  Congress.,  and  jnriadBctiao 
over  which  is  by  Congress  conferred  on  d:>:r^itri  Federal  courts, 
as  Bankruptcy  proceedings,  patent  and  cop yr.gi::  suits. 

6.  Admiralty  proceeding 

7.  Proceedings  to  collect  Federal  revenue. 

8.  Prosecutions  under  the  criminal  laws  of  the  United  States 

(2)  That  the  jurisdiction  of  the  State  and  Federal  courts  is 
concurrent  over  all  matters  over  which  the  Federal  courts  have 
jurisdiction  and  which  are  not  embraced  in  the  eight  classes 
enumerated  above. 

This  is  the  reverse  of  the  general  rule  as  to  k  _  e  f    ~~r 

for,  usually,  the  fact  that  either  government  has  the  power  to 
control  a  certain  matter  by  legislation,  of  itself  excludes  the  other 
from  concurrent  power  of  regulation.    Otherwise,  there  would  be 
two  lawmakers,  each  establishing  rules  for  the  government  of  per- 
sons as  to  the  same  matters.    These  rules  would  either  dup" 
each  other  and  one  be  unnecessary,  or  they  would  eontr:. 
other,  and  thus  put  the  subject  persons  in  a  position  where  I 
must  choose  between  these  conflicting  laws,  and  unavoidably  ren- 
der themselves  liable  to  the  penalty  for  violating  one. 

With  the  judicial  departments  this  is  entirely  different    The 
judicial  function  is  not  to  make  rules  of  conduct,  but  to  ascertain 
what  rules  have  been  properly  made  and  determine  whether  or 
not  certain  conduct  of  certain  individuals  conforms  to  or  vi  ; 
these  established  rules.    And  as  the  legitimate  legislative  a-, 
of  each  government  results  in  law,  and  as  all  persons  within  the 
United  States  are  subject  to  both  governments  and  must 
the  laws  of  each,  it  follows  that  the  courts  of  either  may,  or 


80  AMERICAN   ELEMENTARY  LAW. 

rather  must,  take  into  consideration  the  laws  of  both  in  deter- 
mining the  lawfulness  or  unlawfulness  of  conduct,  and  in  apply- 
ing the  sanctions  of  the  law  thereto.  So  that  in  the  great  major- 
ity of  cases  rights  dependent  upon  the  Common  Law  or  upon  the 
Constitution  and  laws  of  the  United  States,  as  well  as  those 
dependent  upon  the  Constitution  and  laws  of  the  State,  may 
be  enforced  through  State  courts.  This  is  not  true  of  those  mat- 
ters which  have  been  enumerated  as  in  the  exclusive  jurisdic- 
tion of  the  Federal  courts ;  but,  in  any  other  class  of  cases,  it  is 
no  objection  to  the  exercise  of  jurisdiction  by  a  State  court  that 
the  case  might  have  been  brought  in  a  Federal  court. 

In  this  connection,  however,  we  must  not  lose  sight  of  the  right 
of  removal  of  certain  cases  from  the  State  to  the  Federal  courts. 
This  right  is  based  upon  the  fact  that  the  courts  of  the  two  gove- 
ernments  have  concurrent  jurisdiction ;  for,  if  the  suit  is  not  with- 
in the  jurisdiction  of  the  State  court  in  which  it  is  begun,  in  legal 
contemplation  there  is  no  suit  to  remove,  the  proceeding  is  void. 
On  the  other  hand,  if  the  Federal  court,  into  which  it  is  sought  to 
remove  it,  has  no  jurisdiction,  the  removal  proceeding  is  void. 
The  right  to  remove  is,  therefore,  a  preference  given  to  a  Federal 
court  to  try  a  case  which  both  it  and  the  State  court  have,  in  law, 
the  right  to  try.  The  same  case  can  not  be  pending  in  two  differ- 
ent courts  at  the  same  time ;  so,  in  order  to  give  the  right  of  re- 
moval at  all,  it  is  essential  that  the  law  declare  the  effect  of  the 
removal  to  be  to  destroy,  or,  as  it  is  technically  called,  to  oust  the 
jurisdiction  of  the  State  court  as  to  that  case. 

(3)  The  State  courts  have  jurisdiction  exclusive  of  the  Fed- 
eral courts  over  all  matters  not  declared  by  the  United  States 
Constitution  to  be  within  the  judicial  power  of  the  Federal  gov- 
ernment and  over  all  matters  within  the  judicial  power  of  the 
Federal  government  which  have  not  been  assigned  by  Congress 
to  any  Federal  court  for  adjudication.  The  matters,  declared  to 
be  in  this  power,  were  set  out  seriatim  in  dealing  with  the  Federal 
government,  and  need  not  be  repeated. 

State  Judicial  Systems. 

The  judicial  power  in  the  several  States  is  the  same  m  each. 
It  includes  and  extends  to  all  matters  not  exclusively  in  the  juris- 
diction of  the  Federal  courts.    Each  State  determines  for  itself, 


STATE   GOVERNMENTS.  81 

within  the  limitations  of  the  Federal  Constitution  as  to  a  repub- 
lican form  of  government,  due  process  of  law,  etc.,  how  this  power 
shall  be  exercised. 

Each  State  determines  for  itself  the  system  of  courts  which 
it  will  establish,  the  power  to  be  conferred  upon  each,  and  the 
methods  of  procedure  which  are  to  be  followed.  There  is  great 
uniformity  in  the  general  ideas  running  through  these  systems, 
but  great  deal  of  dissimilarity  in  details 

The  general  plan  is  as  follows : 

A  large  number  of  inferior  courts  are  provided  for,  which 
have  jurisdiction  over  trivial  matters,  suits  for  small  debts  and 
petty  misdemeanors.  The  officers  of  these  courts  are  chosen  by 
the  people  of  the  small  precinct  or  territory,  in  which  their 
powers  are  to  be  exercised.  The  proceedings  in  them  are  infor- 
mal. In  many  instances  the  result  reached  is  final ;  in  some  cases, 
however,  appeal  may  be  taken  to  some  higher  court  in  the  system, 
usually  the  one  next  above  that  in  which  the  trial  was  had. 

There  is,  next,  a  class  of  courts  having  larger  powers  and  more 
extensive  territory,  but  still  quite  limited  in  their  jurisdiction, 
in  which  are  tried  civil  suits  more  important  than  those  com- 
mitted to  the  first  class,  yet  relatively  unimportant  when  com- 
pared with  the  higher  interests  of  the  people,  and  more  serious 
crimes.  Appeal  is  usually  allowed  from  the  judgment  of  this 
class  of  courts  to  some  designated  superior  court,  whose  decision 
is,  ordinarily,  final. 

Next,  there  is  a  class  of  courts  having  original  jurisdiction 
of  all  more  important  civil  and  criminal  matters.  These  are  usu- 
ally courts  of  general  jurisdiction,  authorized  to  try  all  cases  not 
assigned  to  some  other  particular  class  of  courts. 

Next,  there  are  higher  courts,  which  have  appellate  or  revi- 
sory power,  and  in  which  cases  are  tried  after  the  trial  in  the  court 
of  original  jurisdiction.  These  courts  are  very  important  institu- 
tions, which  have  large  influence  in  shaping  the  growth  and  de- 
velopment of  the  laws  of  the  several  States.  Their  opinions, 
or  reasons  given  by  them  for  the  conclusions  arrived  at  in  dis- 
posing of  cases,  are  published,  and  constitute  the  reports  of  the 
several  States.  These  are  binding  upon  the  lower  courts  in  the 
State  in  which  they  are  rendered,  and  are  persuasive  in  all  other 
jurisdictions. 
6 


82  AMERICAN   ELEMENTARY   LAW. 

s 

Courts  of  Law  and  Equity. 

In  many  of  the  States  the  old  distinction  between  Common  Law 
and  Chancery  courts  has  been  abolished;  in  a  smaller  number 
the  distinction  remains  in  a  modified  form;  and  perhaps  in  a 
very  small  number  it  remains  without  any  practical  modification. 
These  differences  necessarily  make  differences  in  the  several  ju- 
dicial systems  of  the  respective  States.  "Where  the  distinction 
remains  as  at  Common  Law,  or  with  only  slight  modification, 
there  are  either  two  classes  of  important  courts  of  extensive 
original  jurisdiction,  or  else  the  same  courts  maintain  separate 
dockets  for  cases  at  law  and  suits  in  equity.  Under  either  of 
these  plans,  the  separate  jurisdiction  of  law  and  equity  may  be 
preserved  and  the  peculiarities  in  the  practice  of  Common  Law 
and  Chancery  courts  kept  up. 

Common  Law  courts  only  take  jurisdiction  over  Common  Law 
actions,  entertain  Common  Law  defenses,  and  give  Common  Law 
relief.  The  rule  in  such  courts  is  to  try  all  matters  of  fact 
directly  involved  in  the  case  by  a  jury  and  as  far  as  practicable 
upon  the  testimony  of  witnesses  given  in  open  court. 

In  courts  of  equity  only  equitable  causes  of  action  can  be  sub- 
mitted, equitable  defenses  entertained,  and  equitable  remedies 
given.  In  these  courts,  ordinarily,  matters  of  fact  are  tried  by 
the  judge  without  a  jury  and  the  testimony  is  given  by  deposi- 
tions and  not  by  witnesses  personally  before  the  court. 

Extraordinary  Governmental  Agencies. 

In  all  the  States  the  distinct 'on  between  the  legislative,  judicial 
and  executive  functions  are  recognized.  The  exercise  of  these 
functions  is  delegated  to  separate  departments  of  government. 
In  some  of  the  State  constitutions  it  is  further  provided  that 
the  exercise  of  these  powers  shall  not  be  combined  and  that  no 
officer  belonging  to  one  department  shall  exercise  powers  per- 
taining to  another. 

Governments  organized  on  this  plan  work  well  and  for  many 
years  were  deemed  sufficient.  Later,  conditions  have  arisen  which 
seem  to  demand  greater  concentration  of  power  in  the  hands  of 
certain  officers  in  order  to  secure  prompt  and  efficient  remedies 
against  serious  dangers  to  the  well-being  of  the  public  and  to 
the  rights  of  private  individuals. 

To  meet  these  conditions  new  forms  of  governmental  agencies 


STATE   GOVERNMENTS.  83 

have  been  provided  ordinarily  under  the  designation  of  com- 
missions. The  most  frequent  of  these  are  created  for  the  purpose 
of  dealing  with  railroad  companies  and  other  large  corporations 
operating  as  common  carriers  or  in  other  enterprises  coming 
under  the  general  head  of  public  utilities. 

Most  of  the  powers  ordinarily  conferred  upon  such  commissions 
are  executive,  but  blended  with  these  are  usually  found  certain 
legislative  and  judicial  powers  necessary  in  order  to  make  their 
action  effective. 

The  concentration  of  such  vast  powers  in  the  hands  of  a  few 
men  is  not  desirable  and  should  not  be  done  unless  it  is  clearly 
apparent  that  conditions  exist  which  make  this  form  of  control 
necessary.  In  the  main,  the  action  of  these  various  commissions 
has  been  salutary  and  productive  of  general  good. 

The  powers  conferred  upon  these  commissions  and  the  manner 
of  their  exercise  differ  too  much  in  the  different  States  for  de- 
tailed discussion  to  be  •profitable. 

Guarantees  In  the  Federal  Constitution  to  the  Several  States. 

1.  Republican  form  of  government.    (Article  IV,  Section  4.) 

2.  Protection  against  invasion,  and,  on  proper  application, 
from  domestic  violence.     (Idem.) 

3.  Shall  not  be  divided  nor  combined.     (Article  IV,  Sec- 
tion 3.) 

4.  Equal  suffrage  in  the  Senate.    (Article  V.) 

5.  One  representative.     (Article  I,  Section  2,  No.  3.) 

6.  That  its  citizens  shall  have  equal  rights  in  every  other  State. 
(Article  IV,  Section  2.) 

7.  Appointment  of  militia  officers.     (Article  I,  Section  8, 
No.  16.) 

8.  As  to  control  of  elections  for  Federal  officers.     (Article  I, 
Section  4.) 

9.  As  to  apportionment  of  direct  taxes.     (Article  I,  Section 
2,  No.  3.) 

10.  Against  taxes  on  exports.     (Article  I,  Section  9,  No.  5.) 

11.  No  preference  in   regulation   of   commerce   or  revenue. 
(Article  I,  Section  9,  No.  6.) 

12.  Against  suits  in  Federal  courts  by  citizens  of  any  other 
State  or  foreign  nations.  (Eleventh  Amendment) 


84  AMERICAN  ELEMENTARY  LAW. 

13.  Right  of  extraditing  criminals.  (Article  IV,  Section  2, 
Nos.  2  and  3.) 

14.  The  verity  and  authenticity  of  its  public  acts  and  records. 
(Article  IV,  Section  l.)| 

Limitations  on  the  Powers  of  the  States. 

Next  are  the  limitations  in  the  Federal  Constitution  on  the 
power  of  the  States. 

1.  On  regulation  of  suffrage.  (Fifteenth  Amendment,  Sec- 
tion 1.) 

2.  Shall  not  enter  into  any  treaty,  alliance  or  confederation. 
(Article  I,  Section  10.) 

3.  Shall  not  grant  letters  of  marque  or  reprisal.     (Idem.) 

4.  Shall  not  coin  money.     (Idem.) 

5.  Nor  emit  bills  of  credit.     (Idem.) 

6.  Nor  make  anything  but  gold  and  silver  coin  a  legal  tender 
in  payment  of  debts.     (Idem.)  # 

7.  Nor  pass  any  bill  of  attainder,  ex  post  facto  law  or,  law 
impairing  the  obligation  of  contracts,  or  grant  titles  of  nobility. 
(Idem.) 

8.  Nor  lay  any  imposts  or  duties  on  imports  or  exports  with- 
out the  consent  of  Congress,  and  then  only  for  benefit  of  United 
States  Government     (Article  I,  Section  10,  No.  2.) 

9.  Shall  not  lay  duty  on  tonnage.     (Idem.) 

10.  Nor  keep  troops  nor  ships  in  time  of  peace.     (Idem.) 

11.  Nor  make  any  agreement  or  compact  with  another  State 
or  nation,  without  the  consent  of  Congress.     (Idem.) 

12.  Nor  engage  in  war,  except  in  case  of  actual  invasion. 
(Idem.) 

13.  Shall  not  make  or  enforce  any  law  that  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States.  (Four- 
teenth Amendment,  Section  1.) 

14.  Nor  deprive  any  person  of  life,  liberty,  or  property,  with- 
out due  process  of  law.     (Idem.) 

15.  Nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws.     (Idem.) 


CHAPTER  IIL 

RELATIONS  BETWEEN  THE  GOVERNMENT  OP  THE  UNITED  STATES  AND 
THE  STATE  GOVERNMENTS,  AND  BETWEEN  THE  SEVERAL  STATE 
GOVERNMENTS. 

POLITICAL  ORGANIZATION  IN  THE  UNITED  STATES. 

This  subject  has  necessarily  been  touched  upon  in  our  pre- 
ceding discussions  but  a  more  connected  treatment  seems  de- 
sirable. 

The  States. — The  original  thirteen  States  of  the  Atlantic  sea- 
board preceded  in  point  of  time  both  the  old  Confederation  and 
the  present  government  of  the  United  States.  Each  of  these 
States  had  existed  for  years  as  a  British  colony  separate  and  dis- 
tinct from  each  of  the  other  colonies.  Each  was  founded  under 
the  sovereign  power  of  England  and  for  many  years  recognized 
its  dependent  condition  politically  as  well  as  practically.  Ulti- 
mately dissatisfaction  arose  between  these  colonies  and  England 
and  in  1775  a  war  of  rebellion,  or  invasion,  as  looked  at  from  the 
English  or  American  point  of  view,  was  begun.  As  all  the 
colonies  were  subjected  to  a  common  peril,  they  made  common 
cause  for  the  conduct  of  this  war  though  at  first  they  had  no 
sort  of  organic  connection.  While  matters  were  in  this  condi- 
tion, the  Second  Continental  Congress,  which  was  in  reality  an 
assembly  of  ambassadors  from  the  several  States,  on  the  tenth 
day  of  June,  1776,  passed  two  resolutions,  the  first  providing  for 
a  committee  to  draft  a  Declaration  of  Independence,  and  the 
second,  for  a  committee  to  draft  Articles  of  Confederation  be- 
tween the  several  States.  Prior  to  this  time,  the  Legislatures  and 
conventions  of  several  of  the  States,,  or  colonies,  as  they  were 
then  called,  had  passed  resolutions  advising  or  instructing  their 
delegates  in  Congress  to  declare  independence.  The  resolutions 
from  Virginia,  which  seem  to  have  been  the  immediate  cause  of 
presenting  the  matter  to  the  Continental  Congress,  instructed 
its  delegates  in  Congress  ' '  to  propose  to  that  respectable  body  to 


86  AMERICAN  ELEMENTARY  LAW. 

declare  the  United  States  colonies  free  and  independent  States, 
absolved  from  all  allegiance  or  dependence  upon  the  Crown  or 
Parliament  of  Great  Britain." 

The  resolution  introduced  in  Congress  in  obedience  to  these 
instruction  declares  "That  the  United  Colonies  are  and  ought 
to  be  free  and  independent  States ;  that  they  are  absolved  from 
all  allegiance  to  the  British  Crown;  and  that  all  political  con- 
nection between  them  and  the  State  of  Great  Britain  is,  and 
ought  to  be,  totally  dissolved." 

This  resulted,  as  stated  above,  in  the  appointment  of  a  com- 
mittee to  draft  the  Declaration  of  Independence.  This  committee 
reported  and  the  report  was  adopted  on  the  fourth  of  July,  1776. 
"With  the  language  of  that  instrument  all  are  familiar. 

The  several  States,  while  they  were  considering  declaring  their 
independence,  were  concurrently  changing  their  governments  in 
such  way  as  to  conform  them  to  separation  from  English  au- 
thority. Some  of  these  changes  ante-dated  the  idea  of  separate 
and  independent  existence,  and  were  adapted  to  the  conditions  of 
estrangement  between  England  and  her  colonies,  then  supposed 
to  be  temporary  only,  and  so  contemplated  renewal  of  allegiance 
upon  proper  adjustment  of  the  current  difficulties.  The  changes 
made  later,  however,  were  conscious  and  intended  preparations 
for  separate  Unitary  States. 

The  committee  appointed  to  draft  Articles  of  Confederation 
did  not  report  until  some  months  after  the  Declaration  of  Inde- 
pendence. The  report  by  it  was  adopted  November  15,  1777. 
The  Confederation  contemplated  was  not,  to  come  into  existence 
until  the  Articles  of  Confederation  were  adopted  by  all  the 
States.  The  last  State  did  not  adopt  them  until  March  1,  1781, 
and  hence  the  Articles  did  not  become  operative  as  to  any  until 
that  date. 

It  is  clear,  therefore,  that  these  thirteen  States  ante-dated  the 
Confederation  and  of  necessity  the  United  States  Government  as 
it  now  exists.  The  Declaration  of  Independence  declares  as  to 
the  political  status  of  these  States  at  that  time  that  "We  there- 
fore, the  Representatives  of  the  United  States  of  America,  in 
General  Congress  Assembled,  appealing  to  the  Supreme  Judge 
of  the  World  for  the  rectitude  of  our  intentions  do,  in  the  name 
and  by  the  Authority  of  the  good  people  of  the  Colonies  solemnly 


RELATIONS   BETWEEN   GOVERNMENTS.  87 

publish  and  declare,  that  these  United  Colonies  are  and  of  Right 
ought  to  be  Free  and  Independent  States ;  that  they  are  absolved 
from  all  allegiance  to  the  British  Crown  and  that  all  political 
connection  between  them  and  the  State  of  Great  Britain  is  and 
ought  to  be  dissolved ;  and  that  as  Free  and  Independent  States 
they  have  full  power  to  levy  War,  conclude  Peace,  contract  Al- 
liances, establish  Commerce,  and  do  all  other  Acts  and  Things 
which  Independent  States  may  of  right  do." 

Up  to  this  time  there  were  no  articles  of  Confederation  or 
agreement  existing  among  the  colonies  or  States.  Their  common 
need  had  forced  concerted  action.  The  Continental  Congresses 
were  the  result  of  the  peril  in  which  each  of  the  colonies  found 
itself.  It  was  an  assemblage  of  delegates  from  each  colony 
called  together  for  the  common  good.  It  received  all  its  authority 
from  the  Legislatures  or  Conventions  of  the  several  States.  It 
proved  the  desirability  of  concerted  action  and  opened  the  way 
for  the  establishment  of  a  Confederation  among  the  States.  Its 
action  was  limited  strictly  by  the  needs  of  the  time  and  was 
extended  as  differing  conditions  demanded.  It  acted  as  it  deemed 
best  for  the  public  good  and  its  action  was  acquiesced  in,  not 
because  antecedently  authorized  or  legally  binding  upon  the 
States  but  because  acquiescence  under  the  then  existing  condi- 
tions was  conducive,  if  not  essential,  to  the  existence  of  the  States. 

The  Confederation. — The  Articles  of  Confederation  recom- 
mended by  the  Continental  Congress  on  November  15, 1777,  were 
to  go  into  effect  when  adopted  by  all  of  the  thirteen  States. 
These  Articles  were  acted  on  from  time  to  time,  the  majority 
adopting  them  in  July  of  1778.  Maryland  was  the  last  to  adopt. 
This  action  was  taken  March  1,  1781,  at  which  time  the  Articles 
became  effective. 

This  instrument  is  styled  "Articles  of  Confederation  and  Per- 
petual Union  between  the  States,"  naming  each  of  the  thirteen 
original  colonies. 

Its  first  three  articles  are  as  follows : 

Art.  1.  The  Style  of  this  confederacy  shall  be  "The  United 
States  of  America." 

Art.  II.  Each  state  retains  its  sovereignty,  freedom  and  inde- 
pendence, and  every  Power,  Jurisdiction  and  Right,  which  is 


88  AMERICAN  ELEMENTARY  LAW. 

not  by  this  confederation  expressly  delegated  to  United  States, 
in  congress  assembled. 

Art.  III.  The  said  states  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defence, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other,  against  all  force 
offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  ac- 
count of  religion,  sovereignty,  trade,  or  any  other  pretence  what- 
ever. 

These  articles  are  sufficient  to  show  that  the  union  formed  by 
them  was  designed  to  be,  and  in  fact  was,  only  a  confederation 
as  that  term  has  been  heretofore  explained.  It  gave  legal  form 
and  authority  to  the  common  understanding  that  had  there- 
tofore existed  among  the  States. 

The  government  created  by  it  consisted  of  a  Congress  which 
was  little  more  than  an  assembly  of  ambassadors  from  the  several 
States.  There  was  only  one  House  or  body.  The  number  of 
delegates  from  each  State  could  not  be  less  than  two  nor  more 
than  seven.  The  delegates  were  selected  annually  in  such  manner 
as  the  Legislature  of  each  State  should  direct.  Each  State  paid 
the  expenses  of  its  own  delegates. 

Each  State  had  one  vote  in  Congress,  irrespective  of  the  size 
or  population  of  the  State  or  the  number  of  delegates  it  had  in 
the  body.  The  powers  of  this  Congress  were  very  limited.  It 
could  levy  no  taxes,  and  while  it  could  wage  war  and  declare 
peace,  it  had  no  means  of  defraying  expenses  of  either. 

It  had  no  executive  and  no  permanent  judicial  officers.  The 
Articles  were  to  be  observed  inviolable  by  every  State  and  the 
Union  created  by  it  was  declared  to  be  perpetual.  The  Articles 
could  not  be  amended  unless  the  alteration  was  agreed  in  the 
Congress  of  the  United  States  and  was  afterward  confirmed  by 
the  Legislature  of  each  State.  In  a  short  while  the  inherent 
weakness  of  this  plan  asserted  itself.  A  number  of  attempts  were 
made  to  amend  the  Articles  of  Confederation  but  the  consent 
of  all  the  States  could  never  be  secured  for  any  one  of  these. 

Formation  of  the  Government  of  the  United  States. — Disagree- 
ments arose  between  the  several  States,  particularly  with  ref- 
erence to  commerce.  Several  of  the  States  called  for  Conventions 
of  representatives  from  all  the  States  for  the  purpose  of  con- 


RELATIONS  BETWEEN   GOVERNMENTS.  89 

gidering  these  differences  and  for  the  formation  of  a  stronger 
government.  Finally  a  meeting  was  called  to  be  held  in  An- 
napolis to  consist  of  commissioners  from  all  the  States  for  the 
purpose  of  considering  their  trade  relations.  Commissioners 
from  only  five  States  actually  attended.  These  commissioners 
recommended  a  convention  of  representatives  from  all  the  States 
"to  devise  such  further  provisions  as  shall  appear  to  them  neces- 
sary to  render  the  constitution  of  the  Federal  Government  ade- 
quate to  the  exigencies  of  the  Union."  The  commissioners  sent 
copies  of  this  resolution  to  Congress  and  to  the  Legislatures  of 
the  respective  States.  A  number  of  the  States  approved  of  the 
plan  and  selected  delegates  before  any  action  was  taken  by 
Congress.  Later,  Congress  took  the  matter  up  and  recommended 
that  such  Convention  be  called  to  meet  at  Philadelphpia  on  May 
14,  1787.  In  this  resolution  Congress  declared  that  the  sole 
purpose  of  the  Convention  would  be  to  revise  the  Articles  of 
Confederation  and  that  all  the  amendments  would  have  to  be 
submitted  to  Congress  and  to  all  the  States. 

The  Convention  met  in  Philadelphia  and  organized  on  May  25. 
Every  State  in  the  Confederation,  except  Rhode  Island,  was 
represented.  This  Convention  prepared  the  Constitution  of  the 
United  States  and  adjourned  September  17,  1787.  The  Con- 
stitution thus  prepared  was  not  an  amendment  nor  series  of 
amendments  to  the  Articles  of  Confederation  as  contemplated  by 
the  call  of  Congress,  but  an  entirely  new,  independent,  and  com- 
plete instrument.  It  was  not  submitted  to  Congress.  It  was  to  be 
submitted  for  ratification  to  the  several  States  and  it  was  ex- 
pressly provided  that  "The  ratification  of  the  Conventions  of 
nine  States  shall  be  sufficient  for  the  establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  same. ' ' 

The  result  of  the  action  of  the  Convention  was  to  propose  to 
the  States  of  the  Union  an  abandonment  of  the  Articles  of  Con- 
federation and  of  the  government  created  thereby  and  the  sub- 
stitution therefor  of  the  constitution  drafted  by  it,  and  the  govern- 
ment to  be  organized  and  operated  thereunder.  This  proposition 
was  not  to  be  decided  by  the  Congress  of  the  old  Confederation 
but  by  each  of  the  States  acting  through  Conventions  appointed 
as  the  several  States  should  determine. 

The  new  government  was  to  come  into  existence  as  to  any  nine 


90  AMERICAN  ELEMENTARY  LAW. 

States  so  desiring  so  soon  as  it  was  ratified  by  that  number. 
The  effect  upon  the  other  four  States,  if  only  nine  should  ratify, 
is  not  expressly  declared  in  the  instrument,  but  as  the  effect  of 
the  ratification  by  nine  is  expressly  declared  to  be  the  establish- 
ment of  the  constitution  between  the  States  so  ratifying  the  same, 
and  as  no  State  was  to  be  bound  by  the  constitution  until  it  was 
ratified  by  it,  it  is  clear  that  the  effect  upon  non-ratifying  States 
must  be  to  leave  them  out  of  the  Union.  As  the  coming  into  the 
Union  of  the  nine  ratifying  States  would  necessarily  withdraw 
them  from  the  old  Confederation,  that  government  would  be  at 
an  end  and  the  several  non-ratifying  States  must  have  been 
thrown  back  to  their  original  status  of  Unitary  States. 

The  States  acted  with  reasonable  expedition,  and  within  less 
than  a  year  nine  of  them  had  ratified  the  constitution.  There- 
upon Congress  passed  an  act  providing  for  the  organization  of 
the  new  government.  The  first  "Wednesday  in  March  was  set 
as  the  time  for  ■ '  commencing  the  proceedings  under  the  constitu- 
tion. ' '  The  constitution  went  into  effect  on  that  date,  the  fourth 
of  March,  1789.  At  that  date  all  the  States  tad  ratified  the  con- 
stitution except  North  Carolina  and  Rhode  Island,  so  that  the 
government  of  the  United  States  was  actually  organized  and 
operated  as  among  the  other  eleven  States,  North  Carolina  and 
Rhode  Island  being,  for  the  time,  separate  Unitary  States. 

Later  each  of  these  States  ratified  the  Constitution  and  came 
into  the  Union  on  the  same  footing  that  the  other  States  had. 

The  foreging  is  a  very  brief  outline  of  the  origin,  formation, 
and  organization  of  the  United  States  Government. 

Recapitulation. — The  inherent  primary  sovereignty  was  in  the 
people  of  the  several  States.  Each  State  had  been  a  separate 
colony  dependent  upon  England.  When  each  colony  declared  its 
independence,  it  assumed  all  the  prerogatives  which  it  had  there- 
tofore exercised  and  those  which  the  English  King  and  Parliament 
had  exercised  over  it  and  thus  became  a  political  unit  possessing 
all  the  power  and  prerogatives  included  in  the  term  sovereign. 

Under  the  pressure  of  common  needs  these  several  States  co- 
operated without  any  written  treaty  or  compact  through  the  Con- 
tinental Congress  and  in  this  condition  waged  and  practically  con- 
cluded the  Revolutionary  War.  Next,  these  several  States  en- 
tered into  the  league  formed  by  the  written  instrument  known  as 


RELATIONS  BETWEEN   GOVERNMENTS.  91 

tne  Articles  of  Confederation  and  Perpetual  Union.  By  this 
compact  they  surrendered  none  of  their  sovereign  powers,  though 
they  delegated  the  exercise  of  some  of  these  powers  to  the  Con- 
federation into  which  they  had  entered. 

Later  still,  the  Confederation  proving  inefficient,  these  several 
States  abandoned  that  form  of  co-operation  and  by  their  own 
voluntary  act,  each  acting  for  itself,  formed  and  entered  into 
the  present  United  States  of  America. 

Constitution  of  the  United  States. — The  instrument  calling  this 
new  government  into  being  and  determining  its  nature,  and  the 
nature  and  extent  of  the  powers  conferred  upon  it  and  the  mode 
of  their  exercise,  is  the  Constitution  of  the  United  States. 

This  instrument  provides  for  its  own  amendment,  to  be  ac- 
complished in  specified  ways.  This  power  of  amendment  has 
been  invoked  many  times.  Fifteen  amendments  have  in  fact 
been  made,  so  that  to  be  entirely  accurate  at  this  time  we  should 
say  that  the  powers  of  the  United  States  government  are  those 
conferred  upon  it  by  the  constitution  as  originally  adopted  and 
by  the  several  amendments  thereto.  Every  power  thus  con- 
ferred, either  expressly  or  by  fair  and  proper  implication,  be- 
longs to,  and  may  lawfully  be  exercised  by  that  government. 

Powers  not  thus  conferred  remain  in  the  respective  States  and 
in  the  people.  This  was  generally  conceded  at  the  time  the  con- 
stitution was  adopted,  but  to  make  the  matter  absolutely  clear 
the  Tenth  Amendment  was  adopted.  This  Amendment  declares: 
"The  powers  not  delegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  by  it  to  the  States  are  reserved  to  the  States 
respectively  or  to  the  people." 

It  cannot  be  doubted  that  the  powers  spoken  of  here  are  sov- 
ereign powers.  It  is  equally  plain  that  such  of  these  sovereign 
powers  as  exist  in  the  United  States  were  not  inherent  in  it  but 
were  delegated.  It  is  equally  clear  that  the  powers  of  the  States 
are  recognized  as  inherent  and  primary  and  as  continuing  to 
exist  in  the  States  or  the  people  unless  they  have  divested  them- 
selves of  them  by  delegation  to  the  United  States.  This  is  un- 
questionably a  division  of  sovereign  prerogatives.  The  States 
and  the  people  of  the  States  as  the  possessors  of  all  sovereign 
powers  voluntarily  delegated  a  portion  of  these  powers  to  the 
United  States  and  expressly  reserved  all  powers  not  so  delegated. 


92  AMERICAN   ELEMBNTABY   LAW. 

The  line  of  separation  between  the  powers  retained  by  the 
States  and  the  powers  delegated  to  the  United  States  is  drawn  in 
and  by  the  Constitution  of  the  United  States,  and  all  issues  arising 
on  this  subject  can  be  rightfully  settled  only  by  the  proper  con- 
struction of  that  instrument. 

The  Government  of  the  United  States. — The  government 
created  by  the  adoption  of  the  Constitution  of  the  United  States 
and  known  as  the  United  States  of  America  came  into  existence 
on  the  first  Wednesday  in  March,  1789.  This  government  still 
exists  and  is  one  of  two  political  powers  to  which  all  the  people 
within  its  boundaries  are  subject.  Territorially,  it  embraces  all 
of  the  States,  including  not  only  the  original  thirteen  trat  thirty- 
three  others.  It  also  includes  New  Mexico,  Arizona,  and  Alaska 
on  the  North  American  Continent,  and  a  number  of  insular  pos- 
sessions. 

The  constitution  contemplates  the  formation  and  admission  of 
new  States  into  the  Union.  It  is  a  well  settled  rule  of  law  that 
the  constitutional  rights  of  each  State  in  the  Union  must  be 
identical  with  the  constitutional  rights  of  every  other  State,  so  as 
each  new  State  has  come  into  the  Union,  whether  by  organization 
within  territory  already  belonging  to  the  United  States,  or  by 
annexation,  its  political  status  becomes  and  is  identical  with  that 
of  every  other  State.  So  that,  the  political  powers  of  each  of  the 
new  States  and  their  relations  to  the  United  States  are  to  be 
tested  by  the  same  rules  and  governed  by  the  same  principles  as 
those  applicable  to  the  original  thirteen  States  under  the  Con- 
stitution and  its  Amendments. 

The  matters  within  the  political  authority  of  the  United  States 
are  enumerated  in  the  constitution,  and  the  powers  which  the 
United  States  Government  can  exercise  are  granted  in  and  flow 
from  that  instrument  These  powers  we  have  enumerated  in 
treating  of  the  United  States  Government  proper.  They  cover 
matters  of  national  and  international  and  inter-State  concern  and 
are  limited  to  these.  It  is  not  necessary  for  a  power  to  be  ex- 
pressly named  in  order  for  the  United  States  Government  to 
possess  it.  If  the  effective  exercise  of  a  power  named  properly 
involves  the  exercise  of  some  other  power  as  incidental  thereto, 
the  existence  of  the  incidental  power  will  be  implied.  Thus,  there 
is  no  power  expressly  conferred  upon  the  Federal  Government  to 


RELATIONS   BETWEEN   GOVERNMENTS.  93 

charter  a  corporation,  but  the  government  is  expressly  granted 
the  power  to  do  a  great  many  things  which  necessarily  require 
the  use  of  money  and  hence  to  facilitate  its  financial  activities 
it  is  held  that  the  government  may  charter  National  Banks. 

So  also  with  the  power  of  eminent  domain.  There  is  no 
express  grant  of  this  power  to  the  Federal  Government.  The 
words  or  their  equivalent  do  not  occur  in  the  Constitution  nor 
its  amendments.  The  only  provision  which  contains  any  refer- 
ence to  such  power  is  the  declaration  in  the  fifth  Amendment 
that  "private  property  shall  not  be  taken  for  public  use  without 
just  compensation."  It  is,  however,  held  that  the  United  States 
Government  has  this  power  and  may  exercise  it  to  acquire  prop- 
erty for  proper  governmental  purposes,  not  only  in  the  District 
of  Columbia,  and  in  the  territories,  but  also  within  the  several 
States. 

Legislative  Powers  usually  exclusive. — Whether  or  not  the 
grant  of  the  power  to  the  United  States  Government  makes  such 
power  exclusive  depends  upon  the  nature  of  the  power  and  the 
provisions  of  the  constitution.  If  the  power  is  legislative  in  its 
nature  it  is  almost  always  exclusive.  There  are  few  matters  over 
which  Congress  and  the  several  States  may  legislate  concurrently ; 
indeed,  it  may  be  doubted  whether  there  are  any  such  matters 
at  this  time.  In  the  inception  of  the  government  the  right  of 
the  States  to  legislate  on  some  matters  subject  to  control  by  Con- 
gress was  recognized  on  the  ground  that  the  States  might  act 
until  Congress  had  done  so.  This  doctrine  was  of  vast  practical 
importance  at  one  time  but  has  gradually  become  less  and  less 
so  on  account  of  the  increased  activity  of  Congress  in  the  exercise 
of  its  legislative  powers.  It  would  be  difficult  now  to  find  a 
subject  within  the  Legislative  power  of  the  United  States  upon 
which  Congress  has  not  acted. 

An  analogous  doctrine,  that  is,  whether  the  withdrawal  of 
Congressional  action  and  control  over  certain  matters  may  rein- 
state the  State's  power  of  control  over  these,  is  still  of  practical 
consequence.  For  illustration,  Congress  has  power  to  legislate 
regarding  bankruptcy.  When  the  financial  situation  justifies  it 
it  passes  bankrupt  laws.  These  of  necessity  practically  super- 
sede State  laws  regulating  insolvency  and  the  estates  of  in- 
solvents.   When  Congress  repeals  a  bankrupt  law,  the  question 


94  AMERICAN  ELEMENTARY   LAW. 

necessarily  arises,  What  is  the  effect  upon  the  State  laws  regard- 
ing insolvency?  Will  the  State  law  revive  or  will  it  remain  in- 
operative? If  it  does  not  revive  of  its  own  force,  is  the  State 
free  to  re-enact  it  or  some  similar  law?  The  practical  answer 
to  each  of  these  questions  is  that  the  law  itself  may  be  enforced 
without  further  State  legislation  and  that  the  State  can  enact  new 
laws  on  the  subject  if  it  so  desires. 

Judicial  Powers  largely  concurrent. — We  have  already  seen 
that  the  judicial  power  of  the  Federal  Government  and  of  the 
State  governments  are  largely  concurrent.  There  are  a  few  mat- 
ters to  which  the  judicial  powers  of  the  States  do  not  extend. 
These  are  matters  relating  to  the  ambassadors  and  representatives 
of  foreign  governments  and  controversies  between  the  States. 
These  are  not  only  within  the  exclusive  power  of  the  Federal  Gov- 
ernment but  are  within  the  exclusive  jurisdiction  of  the  United 
States  Supreme  Court.  There  are  also  rights  which  have  no 
Common  Law  basis  but  depend  entirely  upon  Congressional  ac- 
tion, such  as  patent  rights,  and  rights  growing  out  of  United 
States  copyright  laws,  or  bankrupt  laws,  which  are  exclusively 
within  the  jurisdiction  of  the  Federal  courts.  The  enforcement 
of  all  criminal  and  revenue  laws  of  the  Federal  Government  is 
exclusively  in  the  power  of  the  United  States.  So  also  all  cases 
of  admiralty.  These  embrace  most  if  not  all  of  the  matters  which 
are  exclusively  within  the  judicial  power  of  the  Federal  Govern- 
ment. 

All  other  matters  within  that  power  are  also  within  the  judicial 
power  of  the  States  and  either  Congress  or  the  respective  States 
may  create  courts  to  hear  and  determine  them.  In  point  of  fact, 
there  are  some  cases  which  the  Federal  courts  might  lawfully 
be  authorized  to  try,  which  cannot  now  be  tried  in  them  because 
Congress  has  not  given  any  Federal  court  jurisdiction  over  them. 
Among  these  are  cases  involving  less  than  two  thousand  dollars 
between  citizens  of  different  States,  and  between  citizens  of  a 
State  and  foreign  States,  citizens,  or  subjects,  or  which  involve 
a  Federal  question. 

Jurisdiction  of  the  State  courts  is  exclusive  over  all  matters 
not  within  the  judicial  power  of  the  Federal  Government,  or 
which  are  not  exclusively  within  that  power  and  which  have  not 
been  given  over  to  any  Federal  court  for  trial,  as  in  the  case  of 


RELATIONS  BETWEEN   GOVERNMENTS.  95 

suits  between  citizens  of  different  States  involving  less  than  two 
thousand  dollars.  As  we  have  seen  Congress  might  create  a 
court  to  try  such  cases  but  has  not.  Therefore,  they  must  be 
tried,  if  at  all,  in  the  State  courts.  The  same  is  true  as  to  cases 
involving  Federal  questions  or  suits  between  citizens  and  aliens. 

Executive  Towers  usually  exclusive. — The  executive  powers  of 
the  two  governments  are  exclusive  except  with  regard  to  co-oper- 
ation in  providing  and  maintaining  State  militia  and  suppressing 
rebellion  and  insurrection. 

Taxation. — Both  the  Federal  and  State  governments  have  the 
power  of  taxation. 

The  Federal  constitution  expressly  confers  upon  Congress  the 
power  "to  lay  and  collect  taxes,  duties,  imposts  and  excises,  to 
pay  the  debts  and  to  provide  for  the  common  defense  and  general 
welfare  of  the  United  States ;  but  all  duties,  imposts  and  excises 
shall  be  uniform  throughout  the  United  States. ' '  It  further  re- 
quires that  "direct  taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  the  Union  according  to  their 
respective  numbers. ' '  And  practically  reiterates  this  in  the  pro- 
vision that  "no  capitation  or  direct  tax  shall  be  laid  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken."  "No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State." 

Within  the  limits  of  these  provisions  Congress  may  impose 
such  taxes  as  it  sees  fit  except  that  it  cannot  tax  the  political 
activities  of  the  State  nor  the  means  or  instrumentalities  through 
which  these  are  carried  on.  This  last  would  exempt  from  tax- 
ation public  property  belonging  to  the  State  and  that  belonging 
to  its  political  subdivisions  and  the  salaries  of  officers. 

The  Federal  Constitution,  of  course,  does  not  grant  to  the 
States  any  power  to  assess  or  collect  taxes.  This  power  is  in- 
herent in  the  States  and  may  be  exercised  by  them  except  so  far 
as  it  is  expressly  or  impliedly  limited  by  the  Federal  Constitution. 
There  are  two  express  limitations,  each  found  in  Section  10, 
Article  I,  of  the  constitution  as  follows :  "  No  State  shall,  without 
the  consent  of  Congress,  lay  impost  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws:  and  the  net  produce  of  all  duties  and  imposts, 
\aid  by  any  State  on  imports  or  exports,  shall  be  for  the  use  of 


96  AMERICAN  ELEMENTARY  LAW. 

the  Treasury  of  the  United  States;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  Congress. 

"No  State  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage." 

In  addition  to  these  express  limitations  upon  the  taxing  power 
of  the  State  there  is  another  arising  by  implication.  This  pro- 
hibits taxation  in  any  way  or  to  any  extent  of  the  property  of 
the  Federal  Government  or  the  instrumentalities  through  which 
it  carries  out  its  governmental  functions  and  exercises  its  powers. 

Relations  between  the  States. 

So  far  as  the  States  have  given  over  their  sovereign  prerog- 
atives to  the  Federal  Government  they  are  of  necessity  parts  of 
this  government  and  their  relations  as  to  these  matters  are,  of 
course,  domestic. 

As  to  all  matters  not  given  over  to  the  Federal  Government 
each  State  retains  its  own  sovereignty  and  as  to  all  such  matters 
each  is  to  be  regarded  as  a  foreign  sovereign  and  government 
from  the  point  of  view  of  every  other  State.  There  are  certain 
provisions  in  the  Federal  Constitution  which,  as  to  certain  mat- 
ters, modify  or  control  these  relations  between  the  States  as  to 
their  domestic  affairs,  but  the  general  rule  is  as  stated  above. 

This  doctrine  was  announced  early  in  the  history  of  the  govern- 
ment as  to  bills  of  exchange,  promissory  notes  and  other  con- 
tracts. It  is  not,  however,  limited  to  matters  of  contract,  but 
extends  throughout  the  whole  range  of  State  sovereignty  sub- 
ject to  the  limitations  indicated  above. 

Among  the  more  important  of  the  Constitutional  provisions 
effecting  these  modifications  are  the  following: 

(1)  Art.  IV,  Sec.  1,  "Full  faith  and  credit  shall  be  given  in 
each  State  to  the  public  acts,  records  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may  by  general  laws  pre- 
scribe the  manner  in  which  such  acts,  records  and  proceedings 
shall  be  proved,  and  the  effect  thereof." 

This  prevents  any  State  from  disregarding  or  setting  aside 
the  public  acts,  records,  and  judicial  proceedings  of  any  other 
State.  It  does  not,  however,  prevent  any  State  or  its  officers 
from  inquiring  into  the  nature  of  purported  public  acts,  records 
and  judicial  proceedings,  or  of  the  power  of  determining  whether 


BELATIONS   BETWEEN   GOVERNMENTS.  97 

they  are  really  public  and  judicial  in  their  nature.  If  this  fact 
be  established  the  State  must  recognize  the  force  and  effect  of 
the  act,  record,  or  proceeding. 

Congress  has  prescribed  the  manner  by  which  such  act,  record, 
and  proceeding  in  one  State  shall  be  proved  in  another. 

(2)  Art.  IV,  Sec.  2.  "The  citizens  of  each  State  shall  be  en- 
titled to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States." 

Privileges  and  immunities  here  do  not  include  political  rights 
but  are  restricted  to  those  rights  and  privileges  which  have  no 
direct  relation  to  or  involve  the  exercise  of  political  power. 

(3)  Art.  IV,  Sec.  2  (Continued).  "A  person  charged  in  any 
State  with  treason,  felony,  or  other  crime,  who  shall  flee  from 
justice,  and  be  found  in  another  State,  shall  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the  crime." 

This  section  is  the  basis  of  the  right  of  extradition  of  criminals 
from  one  State  to  another.  To  be  subject  to  extradition  the 
person  must  be  charged  with  crime  in  the  State  making  the  de- 
mand. For  this  reason  the  executives  upon  whom  demand  for 
extradition  is  made  have  always  claimed  and  exercised  the  right 
of  inquiring  into  the  sufficiency  of  the  charge  as  made  in  the 
State  from  which  the  demand  comes.  In  some  later  instances,  the 
Governor  upon  whom  the  demand  has  been  made,  has  claimed 
the  right  of  going  beyond  the  sufficiency  of  the  proceedings 
making  the  charge  and  passing  upon  the  probable  guilt  or  in- 
nocence of  the  party  and  on  the  motives  causing  the  prosecution. 
This  extension  of  the  scope  of  inquiry  seems  unwarranted  by  the 
language  of  the  constitution  and  is  probably  violative  of  the 
guarantee  with  reference  to  "full  faith  and  credit  of  the  public 
acts,  records,  and  judicial  proceedings"  of  other  States. 

(4)  By  the  provisions  of  Article  I,  Section  10,  the  States  are 
forbidden  to  enter  into  any  treaty,  alliance,  or  confederation  and 
without  the  consent  of  Congress  to  enter  into  any  agreement  or 
compact  with  another  State.  The  first  of  these  inhibitions  is  ab- 
solute ;  the  other  simply  forbids  any  agreement  or  compact  with 
another  State  in  the  absence  of  Congressional  consent.  "With 
such  consent,  an  agreement  or  compact  with  another  State  may 
be  made. 

7 


98  AMERICAN  ELEMENTARY  LAW. 

<  (5)  The  same  article  and  section  forbids  any  State,  without 
the  consent  of  Congress  to  lay  any  impost  or  duties  on  imports 
or  exports  for  purposes  of  revenue,  or  to  lay  any  duty  of  ton- 
nage. 

These  provisions  apply  as  between  the  States  and  are  limita- 
tions upon  the  power  of  each  as  to  taxing  commerce  originating 
in  or  destined  to  another  State. 


CHAPTER  IV. 

EXTRACTS  FROM  DECISIONS  OP  U.  S.  SUPREME  COURT. 

For  the  purpose  of  supporting  the  views  expressed  above  we 
give  some  extracts  from  the  decisions  of  the  Supreme  Court  of 
the  United  States. 

Gibbons  v.  Ogden,  9  Wheaton,  1,  decided  in  1824. 

This  case  involved  a  consideration  and  determination  of  the 
powers  of  Congress  under  the  Inter-State  Commerce  Clause  of 
the  constitution. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  and,  after 
stating  the  case,  proceeded  as  follows: 

"The  appellant  contends  that  this  decree  is  erroneous,  because 
the  laws  which  purport  to  give  the  exclusive  privilege  it  sustains 
are  repugnant  to  the  Constitution  and  laws  of  the  United  States. 

"They  are  said  to  be  repugnant: — 

"I.  To  that  clause  in  the  Constitution  which  authorizes  Con- 
gress to  regulate  commerce. 

"2.  To  that  which  authorizes  Congress  to  promote  the  progress 
of  science  and  the  useful  arts. 

"The  State  of  New  York  maintains  the  constitutionality  of 
these  laws;  and  their  legislature,  their  council  of  revision,  and 
their  judges,  have  repeatedly  concurred  in  this  opinion.  It  is 
supported  by  great  names — by  names  which  have  all  the  title  to 
consideration  that  virtue,  intelligence  and  office  can  bestow.  No 
tribunal  can  approach  this  question  without  feeling  a  just  and 
real  respect  for  the  opinion  which  is  sustained  by  such  authority; 
but  it  is  the  province  of  this  court,  while  it  respects,  not  to  bow 
to  it  implicitly;  and  the  judges  must  exercise,  in  the  examination 
of  the  subject,  that  understanding  which  Providence  has  bestowed 
upon  them  with  that  independence  which  the  people  of  the  United 
States  expect  from  this  department  of  the  government. 

"As  preliminary  to  the  very  able  discussions  of  the  Constitu- 
tion which  we  have  heard  from  the  bar,  and  as  having  some  in- 
fluence on  its  construction,  reference  has  been  made  to  tho 


100  AMERICAN   ELEMENTARY   LAW. 

political  situation  of  these  States  anterior  to  its  formation.  It 
has  been  said  that  they  were  sovereign,  were  completely  inde- 
pendent, and  were  connected  with  each  other  only  by  a  league. 
This  is  true.  But  when  these  allied  sovereigns  converted  their 
league  into  a  government,  when  they  converted  their  congress  of 
ambassadors,  deputed  to  deliberate  upon  common  concerns  and 
to  recommend  measures  of  general  utility,  into  a  legislature  em- 
powered to  enact  laws  upon  the  most  interesting  subjects,  the 
whole  character  in  which  the  States  appear  underwent  a  change, 
the  extent  of  which  must  be  determined  by  fair  consideration  of 
the  instrument  by  which  that  change  was  effected. 

"This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said  that 
these  powers  ought  to  be  construed  strictly.  But  why  ought  they 
to  be  so  construed?  Is  there  one  sentence  in  the  Constitution 
which  gives  countenance  to  this  rule  ?  In  the  last  of  the  enumer- 
ated powers  that  which  grants,  expressly,  the  means  for  carrying 
all  others  into  execution,  Congress  is  authorized  'to  make  all  laws 
which  shall  be  necessary  and  proper'  for  the  purpose.  But  this 
limitation  on  the  means  which  may  be  used  is  not  extended  to 
the  powers  which  are  conferred ;  nor  is  there  one  sentence  in  the 
Constitution  which  has  been  pointed  out  by  the  gentlemen  of  the 
bar,  or  which  they  have  been  able  to  discern,  that  prescribes  this 
rule.  We  do  not,  therefore,  think  ourselves  justified  in  adopting 
it.  "What  do  gentlemen  mean  by  strict  construction  ?  If  they  con- 
tend only  against  that  enlarged  construction  which  would  extend 
words  beyond  their  natural  and  obvious  import,  we  might  ques- 
tion the  application  of  the  term,  but  should  not  controvert  the 
principle.  If  they  contend  for  that  narrow  construction  which, 
in  support  of  some  theory  not  found  in  the  Constitution,  would 
deny  to  the  government  that  which  the  words  of  the  grant,  as 
usually  understood,  import,  and  which  are  consistent  with  the 
general  views  and  objects  of  the  instrument — for  that  narrow  con- 
struction which  would  cripple  the  government  and  render  it  un- 
equal to  the  objects  for  which  it  is  declared  to  be  instituted  and 
to  which  the  powers  given,  as  fairly  understood,  render  it  com- 
petent— then  we  can  not  perceive  the  propriety  of  this  strict 
construction,  nor  adopt  it  as  a  rule  by  which  the  Constitution  is 
to  be  expounded.    Aa  men  whose  intentions  require  no  conceal- 


UNITED  STATES  SUPREME   COURT   DECISIONS.  101 

ment  generally  employ  the  words  which  most  directly  and  aptly 
express  the  ideas  they  intend  to  convey,  the  enlightened  patriots 
who  framed  our  Constitution  and  the  people  who  adopted  it  must 
have  been  understood  to  have  employed  words  in  their  natural 
sense  and  to  have  intended  what  they  have  said.  If,  from  the  im- 
perfection of  human  language,  there  should  be  serious  doubts 
respecting  the  extent  of  any  given  power,  it  is  a  well  settled  rule 
that  the  objects  for  which  it  was  given,  especially  when  those  ob- 
jects are  expressed  in  the  instrument  itself,  should  have  great  in- 
fluence in  the  construction.  "We  know  of  no  reason  for  exclud- 
ing this  rule  from  the  present  case.  The  grant  does  not  convey 
power  which  might  be  beneficial  to  the  grantor,  if  retained  by 
himself,  or  which  can  inure  solely  to  the  benefit  of  the  grantee ; 
but  is  an  investment  of  power  for  the  general  advantage  in  the 
hands  of  agents  selected  for  that  purpose,  which  power  can  never 
be  exercised  by  the  people  themselves,  but  must  be  placed  in  the 
hands  of  agents,  or  lie  dormant.  We  know  of  no  rule  for  con- 
struing the  extent  of  such  powers  other  than  is  given  by  the  lan- 
guage of  the  instrument  which  confers  them,  taken  in  connec- 
tion with  the  purposes  for  which  they  were  conferred."  •  •  • 
"In  our  complex  system,  presenting  the  rare  and  difficult 
scheme  of  one  general  government  whose  action  extends  over  the 
whole,  but  which  possesses  only  certain  enumerated  powers,  and 
of  numerous  State  governments,  which  retain  and  execute  all 
powers  not  delegated  to  the  Union,  contests  respecting  power  must 
arise.  Were  it  even  otherwise,  the  measures  taken  by  the  re- 
spective governments  to  execute  their  acknowledged  powers  would 
often  be  of  the  same  description,  and  might  sometimes  interfere. 
This,  however,  does  not  prove  that  the  one  is  exercising,  or  has  the 
right  to  exercise,  the  powers  of  the  other." 

McCulloch  v.  Maryland,  4  Wheat.  416,  decided  in  1819. 

This  case  involved  two  main  questions : 

First.  Did  Congress  have  the  implied  power  to  incorporate  a 
bank  to  faciliate  the  transaction  of  the  financial  affairs  of  the 
United  States? 

Second,  If  Congress  did  have  such  power,  could  the  operations 
of  a  branch  of  this  bank  located  in  the  State  of  Maryland  be 
taxed  by  that  State  I 


102  AMERICAN    ELEMENTARY   LAW. 

The  court  answered  the  first  question  in  the  affirmative  and  the 
second  in  the  negative.  Portions  of  the  opinion  on  each  branch 
of  the  case  are  given. 

On  the  first  point,  among  other  things,  the  court  says: 

"The  government  of  the  Union,  then  (Whatever  may  be  the 
influence  of  this  fact  on  the  case)  is,  emphatically,  and  truly,  a 
government  of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised directly  on  them,  and  for  their  benefit. 

' '  This  government  is  acknowledged  by  all  to  be  one  of  enumer- 
ated powers.  The  principle,  that  it  can  exercise  only  the  powers 
granted  to  it,  would  seem  too  apparent  to  have  required  it  to  be 
enforced  by  all  those  arguments  which  its  enlightened  friends, 
while  it  is  was  pending  before  the  people,  found  it  necessary  to 
urge.  That  principle  is  now  universally  admitted.  But  the 
question  respecting  the  extent  of  the  powers  actually  granted, 
is  perpetually  arising,  and  will  probably  continue  to  arise,  as 
long  as  our  system  shall  exist. 

"In  discussing  these  questions,  the  conflicting  powers  of  the 
general  and  state  governments  must  be  brought  into  view,  and 
the  supremacy  of  their  respective  laws,  when  they  are  in  opposi- 
tion must  be  settled. 

"If  any  one  proposition  could  command  the  universal  assent 
of  all  mankind,  we  might  expect  it  would  be  this — that  the  gov: 
eminent  of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.  This  would  seem  to  result  neces- 
sarily from  its  nature.  It  is  the  government  of  all;  its  powers 
are  delegated  by  all;  it  represents  all,  and  acts  for  all.  Though 
any  one  State  may  be  willing  to  control  its  operations,  no  State 
is  willing  to  allow  others  to  control  them.  The  nation,  on  those 
subjects  on  which  it  can  act,  must  necessarily  bind  its  component 
parts.  But  this  question  is  not  left  to  mere  reason;  the  people 
have  in  express  terms,  decided  it  by  saying,  'this  constitution,  and 
the  laws  of  the  United  States,  which  shall  be  made  in  pursuance 
thereof,'  'shall  be  the  supreme  law  of  the  land,'  and  by  requir- 
ing that  the  members  of  the  state  legislatures,  and  the  officers  of 
the  executive  and  judicial  departments  of  the  states  shall  take 
the  oath  of  fidelity  to  it. 

"The  Government  of  the  United  States,  then,  though  limited 
in  its  powers,  is  supreme ;  and  its  laws,  when  made  in  pursuance 


UNITED  STATES  SUPREME  COURT  DECISIONS.  103 

of  the  constitution,  form  the  supreme  law  of  the  land,  'anything 
in  the  constitution  or  laws  of  any  state  to  the  contrary  notwith- 
standing. ' 

"Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no  phrase 
in  the  instrument  which,  like  the  articles  of  confederation,  ex- 
cludes incidental  or  implied  powers;  and  which  requires  that 
everything  granted  shall  be  minutely  and  expressly  described. 
Even  the  10th  amendment,  which  was  framed  for  the  purpose 
of  quieting  the  excessive  jealousies  which  had  been  excited,  omits 
the  word  'expressly,'  and  declares  only  that  the  powers  'not 
delegated  to  the  United  States,  nor  prohibited  to  the  states,  are 
reserved  to  the  states  or  to  the  people ; '  thus  leaving  the  question 
whether  the  particular  power  which  may  become  the  subject  of 
contest,  has  been  delegated  to  the  one  government,  or  prohibited 
to  the  other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment  had  ex- 
perienced the  embarrassments  resulting  from  the  insertion  of 
this  word  into  the  articles  of  confederation,  and  probably  omitted 
it  to  avoid  those  embarrassments.  A  constitution,  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its  great  powers 
will  admit,  and  of  all  the  human  means  by  which  they  may  be 
carried  into  execution,  would  partake  of  the  prolixity  of  a  legal 
code,  and  could  scarcely  be  embraced  by  the  human  mind.  It 
would  probably  never  be  understood  by  the  public.  Its  nature, 
therefore,  requires,  that  only  its  great  outlines  should  be  marked, 
its  important  objects  designated,  and  the  minor  ingredients  which 
compose  those  objects  be  deduced  from  the  nature  of  the  objects 
themselves.  That  this  idea  was  entertained  by  the  framers  of 
the  American  constitution,  is  not  only  to  be  inferred  from  the 
nature  of  the  instrument,  but  from  the  language.  Why  else 
were  some  of  the  limitations,  found  in  the  ninth  section  of  the 
1st  article,  introduced  ?  It  is  also,  in  some  degree,  warranted  by 
their  having  omitted  to  use  any  restrictive  term  which  might  pre- 
vent its  receiving  a  fair  and  just  interpretation.  In  consider- 
ing this  question,  then,  we  must  never  forget  that  it  is  a  constitu- 
tion we  are  expounding. 

"Although,  among  the  enumerated  powers  of  the  government, 
we  no  not  find  the  word  'bank'  or  'incorporation,'  we  find  the 


104  AMERICAN  ELEMENTARY   LAW. 

great  powers  to  lay  and  collect  taxes ;  to  borrow  money ;  to  regu- 
late commerce;  to  declare  and  conduct  a  war;  and  to  raise  and 
support  armies  and  navies.  The  sword  and  the  purse,  all  the 
external  relations,  and  no  inconsiderable  portion  of  the  industry 
of  the  nation,  are  entrusted  to  its  government.  It  can  never  be 
contended  that  these  vast  powers  draw  after  them  others  of 
inferior  importance,  merely  because  they  are  inferior.  Such  an 
idea  can  never  be  advanced.  But  it  may  with  great  reason  be 
contended,  that  a  government,  entrusted  with  such  ample  powers, 
on  the  due  execution  of  which  the  happiness  and  prosperity  of 
the  nation  so  vitally  depends,  must  also  be  entrusted  with  ample 
means  for  their  execution.  The  power  being  given,  it  is  the  in- 
terest of  the  nation  to  facilitate  its  execution.  It  can  never  be 
their  interest,  and  cannot  be  presumed  to  have  been  their  in- 
tention, to  clog  and  embarrass  its  execution  by  withholding  the 
most  appropriate  means.  Throughout  this  vast  republic,  from 
the  St.  Croix  to  the  Gulf  of  Mexico,  from  the  Atlantic  to  the 
Pacific,  revenue  is  to  be  collected  and  expended,  armies  are  to 
be  marched  and  supported.  The  exigencies  of  the  nation  may 
require  that  the  treasure  raised  in  the  north  should  be  transported 
to  the  south,  that  raised  in  the  east  conveyed  to  the  west,  or  that 
this  order  should  be  reversed.  Is  that  construction  of  the  con- 
stitution to  be  preferred  which  would  render  these  operations 
difficult,  hazardous,  and  expensive?  Can  we  adopt  that  con- 
struction (unless  the  words  imperiously  require  it)  which  would 
impute  to  the  framers  of  that  instrument,  when  granting  these 
powers  for  the  public  good,  the  intention  of  impeding  their  exer- 
cise by  withholding  a  choice  of  means?  If,  indeed,  such  be  the 
mandate  of  the  constituton,  we  have  only  to  obey ;  but  that  instru- 
ment does  not  profess  to  enumerate  the  means  by  which  the 
powers  it  confers  may  be  executed;  nor  does  it  prohibit  the 
creation  of  a  corporation,  if  the  existence  of  such  a  being  be  es- 
sential to  the  exercise  of  those  powers.  It  is,  then,  the  subject 
of  fair  inquiry,  how  far  such  means  may  be  employed.  It  is 
not  denied  that  the  powers  given  to  the  government  imply  the 
ordinary  means  of  execution.  That  for  example  of  raising  rev- 
enue, and  applying  it  to  national  purposes,  is  admitted  to  imply 
the  power  of  conveying  the  money  from  place  to  place,  as  the 
exigencies  of  the  nation  may  require,  and  of  employing  the  usual 


UNITED  STATES  SUPREME   COURT  DECISIONS.  105 

means  of  conveyance.  But  it  is  denied,  that  the  government  has 
its  choice  of  means ;  or,  that  it  may  employ  the  most  convenient 
means,  if,  to  employ  them  it  be  necessary  to  erect  a  corporation. 

1 '  On  what  foundation  does  this  argument  rest  ?  On  this  alone : 
The  power  of  creating  a  corporation  is  one  appertaining  to 
sovereignty,  and  is  not  expressly  conferred  on  Congress.  This 
is  true.  But  all  legislative  powers  appertain  to  sovereignty.  The 
original  power  of  giving  the  law  on  any  subject  whatever,  is  a 
sovereign  power;  and  if  the  government  of  the  Union  is  re- 
strained from  creating  a  corporation,  as  a  means  for  performing 
its  functions,  on  the  single  reason  that  the  creation  of  a  corpora- 
tion is  an  act  of  sovereignty;  if  the  sufficiency  of  this  reason  be 
acknowledged,  there  would  be  some  difficulty  in  sustaining  the 
authority  of  Congress  to  pass  other  laws  for  the  accomplishment 
of  the  same  objects. 

1 '  The  government  which  has  a  right  to  do  an  act,  and  has  im- 
posed on  it  the  duty  of  performing  that  act,  must,  according  to 
the  dictates  of  reason,  be  allowed  to  select  the  means ;  and  those 
who  contend  that  it  may  not  select  any  appropriate  means,  that 
one  particular  mode  of  effecting  the  object  is  excepted,  take  upon 
themselves  the  burden  of  establishing  that  exception. 

"The  creation  of  a  corporation,  it  is  said,  appertains  to  sover- 
eignty. This  is  admitted.  But  to  what  portion  of  sovereignty 
does  it  appertain  ?  Does  it  belong  to  one  more  than  to  another  ? 
In  America,  the  powers  of  sovereignty  are  divided  between  the 
government  of  the  Union,  and  those  of  the  States.  They  are  each 
sovereign,  with  respect  to  the  objects  committed  to  it,  and  neither 
sovereign  with  respect  to  the  objects  committed  to  the  other.  We 
cannot  comprehend  that  train  of  reasoning  which  would  main- 
tain that  the  extent  of  power  granted  by  the  people  is  to  be  ascer- 
tained, not  by  the  nature  and  terms  of  the  grant,  but  by  its  date. 
Some  State  constitutions  were  formed  before,  some  since  that  of 
the  United  States.  "We  cannot  believe  that  their  relation  to  each 
other  is  in  any  degree  dependant  upon  this  circumstance.  Their 
respective  powers  must,  we  think,  be  precisely  the  same  as  if 
they  had  been  formed  at  the  same  time.  Had  they  been  formed 
at  the  same  time,  and  had  the  people  conferred  on  the  general 
government  the  power  contained  in  the  constitution,  and  on  the 
states  the  whole  residuum  of  power,  would  it  have  been  asserted 


106  AMERICAN   ELEMENTARY   LAW. 

that  the  government  of  the  Union  was  not  sovereign  with  respect 
to  those  objects  which  were  entrusted  to  it,  in  relation  to  which 
the  laws  were  declared  to  be  supreme?  If  this  could  not  have 
been  asserted,  we  cannot  well  comprehend  the  process  of  reason- 
ing which  maintains  that  a  power  appertaining  to  sovereignty 
cannot  be  connected  with  that  vast  portion  of  it  which  is  granted 
to  the  general  government,  so  far  as  it  is  calculated  to  subserve 
the  legitimate  objects  of  that  government.  The  power  of  creat- 
ing a  corporation,  though  appertaining  to  sovereignty,  is  not,  like 
the  power  of  making  war,  or  levying  taxes,  or  of  regulating  com- 
merce, a  great  substantive  and  independent  power,  which  cannot 
be  implied  as  incidental  to  other  powers,  or  used  as  a  means  of 
executing  them.  It  is  never  the  end  for  which  other  powers  are 
exercised,  but  a  means  by  which  other  objects  are  accom- 
plished."   *     *     * 

"But  the  constitution  of  the  United  States  has  not  left  the 
right  of  Congress  to  employ  the  necessary  means  for  the  execu- 
tion of  the  powers  conferred  on  the  government  to  the  general 
reasoning.  To  its  enumeration  of  powers  is  added  that  of  making 
'all  laws  which  shall  be  necessary  and  proper,  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by 
this  constitution,  in  the  government  of  the  United  States,  or  in 
any  department  thereof.' 

"The  counsel  for  the  state  of  Maryland  have  urged , various 
arguments,  to  prove  that  this  clause,  though  in  terms  a  grant  of 
power,  is  not  so  in  effect;  but  is  really  restrictive  of  the  general 
right,  which  might  otherwise  be  implied,  of  selecting  means  for 
executing  the  enumerated  powers. 

"In  support  of  this  proposition,  they  have  found  it  necessary 
to  contend,  that  this  clause  was  inserted  for  the  purpose  of  con- 
ferring on  Congress  the  power  of  making  laws.  That,  without 
it,  doubts  might  be  entertained  whether  Congress  could  exercise 
its  powers  in  the  form  of  legislation. 

"But  could  this  be  the  object  for  which  it  was  inserted T  A 
government  is  created  by  the  people  having  legislative,  executive, 
and  judicial  powers.  Its  legislative  powers  are  vested  in  a  Con- 
gress, which  is  to  consist  of  a  senate  and  house  of  representatives. 
Each  house  may  determine  the  rules  of  its  proceedings ;  and  it  is 
declared  that  every  bill  which  shall  have  passed  both  houses, 


UNITED  STATES  SUPREME   COURT  DECISIONS.  107 

shall,  before  it  becomes  a  law,  be  presented  to  the  President  ot 
the  United  States.  The  7th  section  describes  the  course  of  pro- 
ceedings, by  which  a  bill  shall  become  a  law;  and,  then,  the  8th 
section  enumerates  the  powers  of  Congress.  Could  it  be  neces- 
sary to  say  that  a  legislature  should  exercise  legislative  powers 
in  the  shape  of  legislation  ?  t  After  allowing  each  house  to  pre- 
scribe its  own  course  of  proceeding,  after  describing  the  manner 
in  which  a  bill  should  become  a  law,  would  it  have  entered  into 
the  mind  of  a  single  member  of  the  convention  that  an  express 
power  to  make  laws  was  necessary  to  enable  the  legislature  to 
make  them  ?  That  a  legislature  endowed  with  legislative  powers, 
can  legislate,  is  a  proposition  too  self-evident  to  have  been  ques- 
tioned. 

"But  the  argument  on  which  most  reliance  is  placed,  is  drawn 
from  the  peculiar  language  of  the  clause.  Congress  is  not  em- 
powered by  it  to  make  all  laws,  which  may  have  relation  to  the 
powers  conferred  on  the  government,  but  such  only  as  may  be 
'necessary  and  proper'  for  carrying  them  into  execution.  The 
word  'necessary'  is  considered  as  controlling  the  whole  sentence, 
and  as  limiting  the  right  to  pass  laws  for  the  execution  of  granted 
powers,  to  such  as  are  indispensable  and  without  which  the  power 
would  be  nugatory.  That  it  excludes  the  choice  of  means,  and 
leaves  to  Congress,  in  each  case,  that  only  which  is  most  direct  and 
simple. 

"Is  it  true  that  this  is  the  sense  in  which  the  word  'necessary'  is 
always  used  ?  Does  it  always  import  an  absolute  physical  neces- 
sity, so  strong  that  one  thing,  to  which  another  may  be  termed 
necessary,  cannot  exist  without  that  other?  We  think  it  does 
not.  If  reference  be  had  to  its  use,  in  the  common  affairs  of  the 
world,  or  in  approved  authors,  we  find  that  it  frequently  imports 
no  more  than  that  one  thing  is  convenient,  or  useful,  or  essential 
to  another.  To  employ  the  means  necessary  to  an  end,  is  gener- 
ally understood  as  employing  any  means  calculated  to  produce 
the  end,  and  not  as  being  confined  to  those  single  means,  without 
which  the  end  would  be  entirely  unattainable,  Such  is  the  char- 
acter of  human  language,  that  no  word  conveys  to  the  mind,  in  all 
situations,  one  single  definite  idea;  and  nothing  is  more  com- 
mon than  to  use  words  in  a  figurative  sense.  Almost  all  com- 
positions contain  words,  which,  taken  in  their  rigorous  sense. 


108  AMERICAN  ELEMENTARY  LAW. 

would  convey  a  meaning  different  from  that  which  is  obviously 
intended.  It  is  essential  to  just  construction,  that  many  words 
which  import  something  excessive  should  be  be  understood  in  a 
more  mitigated  sense — in  that  sense  which  common  usage  justi- 
fies. The  word  'necessary'  is  of  this  description.  It  has  not  a 
fixed  character  peculiar  to  itself.  It  admits  of  all  degrees  of 
comparison ;  and  is  often  connected  with  other  words,  which  in- 
crease or  diminish  the  impression  the  mind  receives  of  the  urgency 
it  imports.  A  thing  may  be  necessary,  very  necessary,  abso- 
lutely or  indispensably  necessary.  To  no  mind  would  the  same 
idea  be  conveyed  by  these  several  phrases.  This  comment  on  the 
word  is  well  illustrated  by  the  passage  cited  at  the  bar,  from  the 
10th  section  of  the  1st  article  of  the  constitution.  It  is,  we  think, 
impossible  to  compare  the  sentence  which  prohibits  a  state  from 
laying  '  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws,'  with 
that  which  authorizes  Congress  'to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution'  the  powers 
of  the  general  government  without  feeling  a  conviction  that  the 
convention  understood  itself  to  change  materially  the  meaning 
of  the  word  'necessary'  by  prefixing  the  word  'absolutely.' 
This  word,  then,  like  others,  is  used  in  various  senses ;  and,  in  its 
construction,  the  subject,  the  context,  the  intention  of  the  person 
using  them,  are  all  to  be  taken  into  view. 

"Let  this  be  done  in  the  case  under  consideration.  The  sub- 
ject is  the  execution  of  those  great  powers  on  which  the  welfare 
of  a  nation  essentially  depends.  It  must  have  been  the  intention 
of  those  who  gave  these  powers,  to  insure,  as  far  as  human  pru- 
dence could  insure,  their  beneficial  execution.  This  could  not  be 
done  by  confiding  the  choice  of  means  to  such  narrow  limits  as 
not  to  leave  it  in  the  power  of  Congress  to  adopt  any  which  might 
be  appropriate,  and  which  were  conducive  to  that  end.  This  pro- 
vision is  made  in  a  constitution  intended  to  endure  for  ages,  and, 
consequently,  to  be  adapted  to  the  various  crises  of  human  affairs. 
To  have  prescribed  the  means  by  which  the  government  should,  in 
all  future  time,  execute  its  powers,  would  have  been  to  change, 
entirely,  the  character  of  the  instrument,  and  give  it  the  prop- 
erties of  a  legal  code.  It  would  have  been  as  unwise  to  provide, 
by  immutable  rules,  for  exigencies  which,  if  foreseen  at  all,  must 


UNITED   STATES  SUPREME  COURT  DECISIONS*  109 

have  been  seen  dimly,  and  which  can  be  best  provided  for  when 
they  occur.  To  have  declared  that  the  best  means  shall  not  be 
used,  but  those  alone  without  which  the  power  given  would  be 
nugatory,  would  have  been  to  deprive  the  legislature  of  the  capa- 
city to  avail  itself  of  experience,  to  exercise  its  reason,  and  to 
accommodate  its  legislation  to  circumstances." 

Having  answered  the  first  question  in  the  affirmative  the  opin- 
ion proceeds  with  the  second  in  part  as  follows: 

"2.  Whether  the  State  of  Maryland  may,  without  violating  the 
Constitution,  tax  that  branch  ? 

"That  the  power  of  taxation  is  one  of  vital  importance;  that 
it  is  not  abridged  by  the  grant  of  a  similar  power  to  the  Govern- 
ment of  the  Union,  and  that  it  is  to  be  concurrently  exercised 
by  the  two  governments,  are  truths  which  have  never  been  denied. 
But  such  is  the  paramount  character  of  the  Constitution  that  its 
capacity  to  withdraw  any  subject  from  the  action  of  even  this 
power  is  admitted.  The  States  are  expressly  forbidden  to  lay 
any  duties  on  imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  their  inspection  laws.  If  the  obligation 
of  this  prohibition  must  be  conceded — if  it  may  restrain  a  State 
from  the  exercise  of  its  taxing  power  on  imports  and  exports — 
the  same  paramount  character  would  seem  to  restrain,  as  it  cer- 
tainly may  restrain,  a  State  from  such  exercise  of  this  power  as 
is,  in  its  nature,  incompatible  with,  and  repugnant  to,  the  consti- 
tutional laws  of  the  Union.  A  law  absolutely  repugnant  to  an- 
other as  entirely  repeals  that  other  as  if  express  terms  of  repeal 
were  used. 

' '  On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations.  There 
is  no  express  provision  for  the  case,  but  the  claim  has  been  sus- 
tained on  a  principle  which  so  entirely  pervades  the  Constitution, 
is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 
woven with  its  web,  so  blended  with  its  texture,  as  to  be  incapable 
of  being  separated  from  it  without  rending  it  into  shreds. 

"This  great  principle  is,  that  the  Constitution  and  the  laws 
made  in  pursuance  thereof  are  supreme;  that  they  control  the 
constitutions  and  laws  of  the  respective  States,  and  can  not  be 
controlled  by  them.  From  this,  which  may  be  almost  termed  an 
axiom,  other  propositions  are  deduced  as  corollaries,  on  the  truth 


110  AMERICAN   ELEMENTARY  LAW. 

or  error  of  which,  and  on  their  application  to  this  case,  the  cause 
has  been  supposed  to  depend.  These  are:  (1)  That  a  power  to 
create  implies  a  power  to  preserve;  (2)  that  a  power  to  destroy, 
if  wielded  by  a  different  hand,  is  hostile  to,  and  incompatible 
with,  these  powers  to  create  and  preserve;  (3)  that  where  this 
repugnancy  exists,  that  authority  which  is  supreme  must  control, 
not  yield  to,  that  over  which  it  is  supreme. 

"These  propositions,  as  abstract  truths,  would,  perhaps,  never 
be  controverted.  Their  application  to  this  case,  however>  has 
been  denied;  and,  both  in  maintaining  the  affirmative  and  the 
negative,  a  splendor  of  eloquence  and  strength  of  argument  sel- 
dom, if  ever,  surpassed  have  been  displayed. 

"The  power  of  Congress  to  create,  and  of  course  to  continue, 
the  bank,  was  the  subject  of  the  preceding  part  of  this  opinion; 
and  is  no  longer  to  be  considered  as  questionable. 

"That  the  power  of  taxing  it  by  the  States  may  be  exercised 
so  as  to  destroy  it,  is  too  obvious  to  be  denied.  But  taxation  is 
said  to  be  an  absolute  power,  which  acknowledges  no  other  limits 
than  those  expressly  prescribed  in  the  Constitution,  and,  like 
sovereign  power  of  every  other  description,  is  trusted  to  the 
discretion  of  those  who  use  it.  But  the  very  terms  of  this  argu- 
ment admit  that  the  sovereignty  of  the  State,  in  the  article  on 
taxation  itself,  is  subordinate  to,  and  may  be  controlled  by,  the 
Constitution  of  the  United  States.  How  far  it  has  been  con- 
trolled by  that  instrument  must  be  a  question  of  construction.  In 
making  this  construction,  no  principle  not  declared  can  be  ad- 
missible which  would  defeat  the  legitimate  operations  of  a  su- 
preme government.  It  is  of  the  very  essence  of  supremacy  to 
remove  all  obstacles  to  its  action  within  its  own  sphere,  and  so 
to  modify  every  power  vested  in  subordinate  governments  as  to 
exempt  its  own  operations  from  their  own  influence.  This  effect 
need  not  be  stated  in  terms.  It  is  so  involved  in  the  declaration 
of  supremacy,  so  necessarily  implied  in  it,  that  the  expression  of 
it  could  not  make  it  more  certain.  We  must,  therefore,  keep 
it  in  view  while  construing  the  Constitution. 

"The  argument  on  the  part  of  the  State  of  Maryland  is,  not 
that  the  States  may  directly  resist  a  law  of  Congress,  but  that  they 
may  exercise  their  acknowledged  powers  upon  it,  and  that  the 


UNITED  STATES  SUPREME   COURT  DECISIONS.  Ill 

Constitution  leaves  them  this  right,  in  the  confidence  that  they 
will  not  abuse  it. 

''Before  we  proceed  to  examine  this  argument,  and  to  subject 
it  to  the  test  of  the  Constitution,  we  must  be  permitted  to  bestow 
a  few  considerations  on  the  nature  and  extent  of  this  original 
right  of  taxation,  which  is  acknowledged  to  remain  with  the 
States.  It  is  admitted  that  the  power  of  taxing  the  people  and 
their  property  is  essential  to  the  very  existence  of  the  govern- 
ment, and  may  be  legitimately  exercised,  on  the  objects  to  which 
it  is  applicable,  to  the  utmost  extent  to  which  the  government 
may  choose  to  carry  it.  The  only  security  against  the  abuse  of 
this  power  is  found  in  the  structure  of  the  government  itself. 
In  imposing  a  tax,  the  legislature  acts  upon  its  constituents. 
This  is  in  general  sufficient  security  against  erroneous  and  op 
pressive  taxation. 

"The  people  of  a  State,  therefore,  give  to  their  government  a 
right  of  taxing  themselves  and  their  property,  and  as  the 
exigencies  of  government  can  not  be  limited,  they  prescribe  no 
limits  to  the  exercise  of  this  right,  resting  constantly  on  the  in- 
terest of  the  legislator,  and  on  the  influence  of  the  constituents 
over  their  representatives,  to  guard  them  against  its  abuse.  But 
the  means  employed  by  the  Union  have  no  such  security,  nor  is 
the  right  of  a  State  to  tax  them  sustained  by  the  same  theory. 
Those  means  are  not  given  to  the  people  of  a  particular  State, 
not  given  by  the  constituents  of  the  legislature  which  claims  the 
right  to  tax  them,  but  by  the  people  of  all  the  States.  They  are 
given  by  all,  for  the  benefit  of  all ;  and,  upon  this  theory,  should 
be  subjected  to  that  government  only  which  belongs  to  all. 

"It  may  be  objected  to  this  definition  that  the  power  of  tax- 
ation is  not  confined  to  the  people  and  property  of  a  State — it 
may  be  exercised  upon  every  object  brought  within  its  jurisdic- 
tion. 

"This  is  true.  But  to  what  source  do  we  trace  this  right? 
It  is  obvious  that  it  is  an  incident  of  sovereignty,  and  is  co- 
extensive with  that  to  which  it  is  an  incident.  All  subjects  over 
which  the  sovereign  power  of  a  State  extends  are  objects  of  tax- 
ation ;  but  those  over  which  it  does  not  extend  are,  upon  the  sound- 
est principles,  exempt  from  taxation.  This  proposition  may  al- 
most be  pronounced  self-evident. 


112  AMERICAN   ELEMENTARY  LAW. 

' '  The  sovereignty  of  a  State  extends  to  everything  which  exists 
by  its  own  authority  or  is  introduced  by  its  permission.  But  does 
it  extend  to  those  means  which  are  employed  by  Congress  to 
carry  into  execution  powers  conferred  upon  that  body  by  the 
people  of  the  United  States?  We  think  it  demonstrable  that 
it  does  not.  Those  powers  are  not  given  by  the  people  of  a  single 
State.  They  are  given,  by  the  people  of  the  United  States,  to  a 
government  whose  laws,  made  in  pursuance  of  the  Constitution, 
are  declared  to  be  supreme.  Consequently,  the  people  of  a  single 
State  can  not  confer  a  sovereignty  which  will  extend  over  them. 

"If  we  measure  the  power  of  taxation  residing  in  a  State  by  the 
extent  of  sovereignty  which  the  people  of  a  single  State  possess, 
and  can  confer  on  its  government,  we  have  an  intelligible  stand- 
ard, applicable  to  every  case  to  which  the  power  may  be  applied. 
We  have  a  principle  which  leaves  the  power  of  taxing  the  peo- 
ple and  property  of  a  State  unimpaired ;  which  leaves  to  a  State 
the  command  of  all  its  resources,  and  which  places  beyond  its 
reach  all  those  powers  which  are  conferred  by  the  people  of  the 
United  States  on  the  government  of  the  Union,  and  all  those 
means  which  are  given  for  the  purpose  of  carrying  those  powers 
into  execution.  We  have  a  principle  which  is  safe  for  the  States, 
and  safe  for  the  Union.  We  are  relieved,  as  we  ought  to  be,  from 
clashing  sovereignty;  from  interfering  powers;  from  a  repug- 
nancy between  a  right  in  one  government  to  pull  down  what  there 
is  an  acknowledged  right  in  another  to  build  up;  from  the  in- 
compatibility of  a  right  in  one  government  to  destroy  what  there 
is  a  right  in  another  to  preserve.  We  are  not  driven  to  the  per- 
plexing inquiry,  so  unfit  for  the  judicial  department:  What 
degree  of  taxation  is  the  legitimate  use,  and  what  degree  may 
amount  to  the  abuse  of  the  power  ?  The  attempt  to  use  it  on  the 
means  employed  by  the  government  of  the  Union,  in  pursuance 
of  the  Constitution,  is  itself  an  abuse,  because  it  is  an  usurpation 
of  a  power,  which  the  people  of  a  State  can  not  give. 

"We  find,  then,  on  just  theory,  a  total  failure  of  this  original 
right  to  tax  the  means  employed  by  the  government  of  the  Union 
for  the  execution  of  its  powers.  The  right  never  existed,  and  the 
question  whether  it  has  been  surrendered  can  not  arise. 

"But,  waiving  this  theory  for  the  present,  let  us  resume  the 


UNITED   STATES   SUPREME    COURT   DECISIONS.  113 

inquiry  whether  this  power  can  be  exercised  by  the  respective 
States,  consistently  with  a  fair  construction  of  the  Constitution  ? 

1 '  That  the  power  to  tax  involves  the  power  to  destroy ;  that  the 
power  to  destroy  may  defeat  and  render  useless  the  power  to 
create;  that  there  is  a  plain  repugnance  in  conferring  on  one 
government  a  power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very  measures,  is 
declared  to  be  supreme  over  that  which  exerts  the  control,  are 
propositions  not  to  be  denied.  But  all  inconsistencies  are  to  be 
reconciled  by  the  magic  of  the  word  confidence.  Taxation,  it  is 
said,  does  not  necessarily  and  unavoidably  destroy.  To  carry 
it  to  the  excess  of  destruction  would  be  an  abuse,  to  presume  which 
would  banish  that  confidence  which  is  essential  to  all  government. 

' '  But  is  this  a  case  of  confidence  ?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most 
insignificant  operations  of  their  State  government?  We  know 
they  would  not.  Why,  then,  should  we  suppose  that  the  people 
of  any  one  State  should  be  willing  to  trust  those  of  another  with 
a  power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests? 
In  the  legislature  of  the  Union  alone  are  all  represented.  The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  will  not  be  abused.  This,  then,  is  not 
a  case  of  confidence,  and  we  must  consider  it  as  it  really  is. 

"If  we  apply  the  principle  for  which  the  State  of  Maryland 
contends  to  the  Constitution  generally,  we  shall  find  it  capable 
of  changing  totally  the  character  of  that  instrument.  We  shall 
find  it  capable  of  arresting  all  the  measures  of  the  government 
and  of  prostrating  it  at  the  feet  of  the  States.  The  American 
people  have  declared  their  Constitution,  and  the  laws  made  in 
pursuance  thereof,  to  be  supreme ;  but  this  principle  would  trans- 
fer the  supremacy,  in  fact,  to  the  State. 

"If  the  States  may  tax  one  instrument,  employed  by  the  gov- 
ernment in  the  exercise  of  its  powers,  they  may  tax  any  and 
every  other  instrument.  They  may  tax  the  mail;  they  may  tax 
the  mint;  they  may  tax  patent  rights;  they  may  tax  the  papers 
of  the  custom-house;  they  may  tax  judicial  process;  they  may 
tax  all  the  means  employed  by  the  government  to  an  excess  which 
8 


114  AMERICAN   ELEMENTARY  LAW. 

would  defeat  all  the  ends  of  government.  This  was  not  intended 
by  the  American  people.  They  did  not  design  to  make  their 
government  dependent  on  the  States. 

"Gentlemen  say  they  do  not  claim  the  right  to  extend  State 
taxation  to  these  objects.  They  limit  their  pretensions  to  prop- 
erty. But  on  what  principle  is  this  distinction  made?  Those 
who  make  it  have  furnished  no  reason  for  it,  and  the  principle 
for  which  they  contend  denies  it.  They  contend  that  the  power 
of  taxation  has  no  other  limit  than  is  found  in  the  tenth  section 
of  the  first  article  of  the  Constitution;  that,  with  respect  to 
everything  else,  the  power  of  the  States  is  supreme  and  admits 
of  no  control.  If  this  be  true,  the  distinction  between  property 
and  other  subjects  to  which  the  power  of  taxation  is  applicable 
is  merely  arbitrary,  and  can  never  be  sustained.  This  is  not  all. 
If  the  controlling  power  of  the  States  be  established — if  their 
supremacy  as  to  taxation  be  acknowledged — what  is  to  restrain 
their  exercising  this  control  in  any  shape  they  may  please  to 
give  it?  Their  sovereignty  is  not  confined  to  taxation.  That  is 
not  the  only  mode  in  which  it  might  be  displayed.  The  question 
is,  in  truth,  a  question  of  supremacy;  and  if  the  right  of  the 
States  to  tax  the  means  employed  by  the  general  government  be 
conceded,  the  declaration  that  the  Constitution  and  the  laws  made 
in  pursuance  thereof  shall  be  the  supreme  law  of  the  land  is 
empty  and  unmeaning  declamation." 

Veazie  Bank  v.  Fenno,  8  Wall.  533,  decided  December  13,  1869. 

This  case  involved  the  power  of  the  United  States  Government 
to  tax  bills  issued  by  State  banks. 

Among  other  objections  to  the  law  it  was  urged  that  as  the 
bank  was  created  by  the  State  and  issued  bills  under  a  franchise 
from  the  State,  that  the  doctrine  announced  in  McCulloch  v. 
Maryland  would  apply  and  the  tax  was  consequently  unconstitu- 
tional. In  passing  upon  this  point  the  court  uses  the  following 
language : 

"Is  it,  then  a  tax  on  a  franchise  granted  by  a  State  which 
Congress,  upon  any  principle  exempting  the  reserved  powers  of 
the  State  from  impairment  by  taxation,  must  be  held  to  have  no 
authority  to  lay  and  collect? 

"We  do  not  say  that  there  may  not  be  such  a  tax.  It  may  be 
admitted  that  the  reserved  rights  of  the  States,  such  as  the  right 


UNITED  STATES  SUPREME  COURT  DECISIONS.  115 

to  pass  laws,  to  give  effect  to  laws  through  executive  action,  to 
administer  justice  through  the  courts,  and  to  employ  all  necessary 
agencies  for  legitimate  purposes  of  State  Government,  are  not 
proper  subjects  of  the  taxing  power  of  Congress.  But  it  cannot 
be  admitted  that  franchises  granted  by  a  State  are  necessarily 
exempt  from  taxation;  for  franchises  are  property,  often  very 
valuable  and  productive  property;  and  when  not  conferred  for 
the  purpose  of  giving  effect  to  some  reserved  power  of  a  State, 
seem  to  be  as  properly  objects  of  taxation  as  any  other  property. 
"But  in  the  case  before  us  the  object  of  taxation  is  not  the 
franchise  of  the  bank,  but  property  created,  or  contracts  made 
and  issued  under  the  franchise,  or  power  to  issue  bankbills.  A 
railroad  company,  in  the  exercise  of  its  corporate  franchises, 
issues  freight  receipts,  bills  of  lading,  and  passenger  tickets; 
and  it  cannot  be  doubted  that  the  organization  of  railroads  is 
quite  as  important  to  the  State  as  the  organization  of  banks. 
But  it  will  hardly  be  questioned  that  these  contracts  of  the  com- 
pany are  objects  of  taxation  within  the  powers  of  Congress,  and 
not  exempted  by  any  relation  to  the  State  which  granted  the 
charter  of  the  railroad.  And  it  seems  difficult  to  distinguish 
the  taxation  of  notes  issued  for  circulation  from  the  taxation  of 
these  railroad  contracts.  Both  descriptions  of  contracts  are 
means  of  profit  to  the  corporations  which  issue  them ;  and  both, 
as  we  think,  may  properly  be  made  contributory  to  the  public 
revenue." 

Buffington  v.  Day,  11  Wall.  113,  decided  April  3,  1871. 

This  case  involves  the  power  of  the  United  States  to  tax  the 
salary  of  a  State  officer.  Mr.  Justice  Nelson  delivered  the  opinion 
of  the  court : 

"This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United 
States  for  the  District  of  Massachusetts. 

"Day,  the  plaintiff,  in  the  court  below  and  the  defendant  in 
error,  brought  a  suit  against  Buffington,  the  Collector  of  the 
Internal  Revenue,  to  recover  back  $61.51  and  interest,  assessed 
upon  his  salary  in  the  years  1866  and  1867,  as  Judge  of  the  Court 
of  Probate  and  Insolvency  for  the  County  of  Barnstable,  State 
of  Massachusetts,  paid  under  protest.  The  salary  is  fixed  by 
law  and  payable  out  of  the  Treasury  of  the  State.  The  case  was 
submitted  to  the  court  below  on  an  agreed  statement  of  the  facts, 


116  AMERICAN  ELEMENTARY  LAW. 

upon  which  judgment  was  rendered  for  the  plaintiff.  It  is  now 
here  for  re-examination.  It  presents  the  question,  whether  or 
uot  it  is  competent  for  Congress,  under  the  Constitution  of  the 
United  States,  to  impose  a  tax  upon  the  salary  of  a  judicial  officer 
of  a  State. 

"In  the  case  of  Dobbins  v.  Erie  Co.,  16  Pet.  435,  it  was  de- 
•  cided  that  it  was  not  competent  for  the  Legislature  of  a  State  to 
levy  a  tax  upon  the  salary  or  emoluments  of  an  officer  of  the 
United  States.  The  decision  was  placed  mainly  upon  the  ground 
that  the  officer  was  a  means  or  instrumentality  employed  for 
carrying  into  effect  some  of  the  legitimate  powers  of  the  Govern- 
ment, which  could  not  be  interfered  with  by  taxation  or  other- 
wise by  the  States,  and  that  the  salary  or  compensation  of  the 
officer  was  inseparably  connected  with  the  office ;  that  if  the  officer, 
as  such,  was  exempt,  the  salary  assigned  for  his  support  or 
maintenance  while  holding  the  office,  was  also,  for  like  reasons, 
equally  as  exempt. 

"The  cases  of  McCulloch  v.  Maryland,  4  Wheat.  316,  and 
Weston  v.  Charleston,  2  Pet.,  449,  were  referred  to  as  settling  the 
principle  that  governed  the  case,  namely:  'That  the  State  govern- 
ments cannot  lay  a  tax  upon  the  constitutional  means  employed 
by  the  Government  of  the  Union  to  execute  its  constitutional 
powers. ' 

"The  soundness  of  this  principle  is  happily  illustrated  by  the 
Chief  Justice  in  McCulloch  v.  Md.,  'If  the  States,'  he  observes, 
'May  tax  one  instrument  employed  by  the  government  in  the 
execution  of  its  powers,  they  may  tax  any  and  every  other  in- 
strument. They  may  tax  the  mail ;  they  may  tax  the  mint ;  they 
may  tax  patent  rights;  they  may  tax  judicial  process;  they  may 
tax  all  the  means  employed  by  the  government  to  an  excess  wrhich 
would  defeat  all  the  ends  of  government.'  'This,'  he  observes, 
4  was  not  intended  by  the  American  people.  They  did  not  design 
to  make  their  government  dependent  on  the  States.'  Again, 
p.  427,  'That  the  power  of  taxing  it  (the  bank)  by  the  States  may 
be  exercised  so  far  as  to  destroy  it,  is  too  obvious  to  be  denied.' 
And  in  Weston  v.  Charleston,  he  observes:  'If  the  right  to  impose 
the  tax  exists,  it  is  a  right  which,  in  its  nature,  acknowledges  no 
limits.     It  may  be  carried  to  any  extent  within  the  jurisdiction 


UNITED  STATES  SUPREME   COURT   DECISIONS.  117 

of  the  State  or  corporation  which  imposes  it  which  the  will  of 
each  corporation  and  State  may  prescribe.' 

1 '  It  is  conceded  in  the  case  of  McCulloch  v.  Md.  that  the  p  ower 
of  taxation  by  the  States  was  not  abridged  by  the  grant  of  a 
similar  power  to  the  Government  of  the  Union ;  that  it  was  re- 
tained by  the  States,  and  that  the  power  is  to  be  concurrently 
exercised  by  the  two  governments;  and  also  that  there  is  no 
express  constitutional  prohibition  on  the  States  against  taxing 
the  means  or  instrumentalities  of  the  General  Government.  But, 
it  was  held,  and  we  agree  properly  held,  to  be  prohibited  by 
necessary  implication;  otherwise,  the  States  might  impose  taxa- 
tion to  an  extent  that  would  impair,  if  not  wholly  defeat,  the 
operation  of  the  federal  authorities  when  acting  in  their  ap- 
propriate sphere. 

"These  views,  we  think,  abundantly  establish  the  soundness 
of  the  decision  of  the  case  of  Dobbins  v.  Erie  Co.  (supra) ,  which 
determined  that  the  States  were  prohibited,  upon  the  proper 
construction  of  the  Constitution,  from  taxing  the  salary  or 
emoluments  of  an  officer  of  the  Government  of  the  United  States. 
And  we  shall  now  proceed  to  show  that,  upon  the  same  con- 
struction of  that  instrument,  and  for  like  reasons,  that  the  gov- 
ernment is  prohibited  from  taxing  the  salary  of  the  judicial 
officer  of  a  State. 

"It  is  a  familiar  rule  of  construction  of  the  Constitution  of 
the  Union,  that  the  sovereign  powers  vested  in  the  State  govern- 
ments by  their  respective  constitutions,  remained  unaltered  and 
unimpaired  except  so  far  as  they  were  granted  to  the  Govern- 
ment of  the  United  States.  That  the  intention  of  the  framers  of 
the  Constitution  in  this  respect  might  not  be  misunderstood,  this 
rule  of  interpretation  is  expressly  declared  in  the  10th  Article 
of  the  amendments,  namely:  'The  powers  not  delegated  to  the 
United  States  are  reserved  to  the  States  respectively,  or  to  the 
people.'  The  Government  of  the  United  States,  therefore,  can 
claim  no  powers  which  are  not  granted  to  it  by  the  Constitution, 
and  the  powers  actually  granted  must  be  such  as  are  expressly 
given,  or  given  by  necessary  implication. 

"The  General  Government,  and  the  States,  although  both  exist 
within  the  same  territorial   limits,   are  separate   and   distinct 


118  AMERICAN   ELEMENTARY   LAW. 

sovereignties,  acting  separately  and  independent  of  each  other, 
within  their  respective  spheres.  The  former,  in  its  appropriate 
sphere,  is  supreme;  but  the  States  within  the  limits  of  their 
powers  not  granted,  or,  in  the  language  of  the  10th  Amendment, 
'  reserved '  are  as  independent  of  the  General  Government  as  that 
government  within  its  sphere  is  independent  of  the  States. 

"The  relations  existing  between  the  two  governments  are  well 
stated  by  the  present  Chief  Justice  in  the  case  of  Lane  Co.  v. 
Oregon,  7  Wall.  76  (74  U.  S.  XIX,  104).  'Both  the  States  and 
the  United  States, '  he  observed,  '  existed  before  the  Constitution. 
The  people,  through  that  instrument,  established  a  more  perfect 
Union  by  substituting  a  national  government,  acting  with  ample 
powers  directly  upon  the  citizens,  instead  of  the  Confederate 
Government,  which  acted  with  powers,  greatly  restricted,  only 
upon  the  States.  But,  in  many  of  the  articles  of  the  Constitu- 
tion, the  necessary  existence  of  the  States,  and  within  their 
proper  spheres,  the  independent  authority  of  the  States  is  dis- 
tinctly recognized.  To  them  nearly  the  whole  charge  of  interior 
regulation  is  committed  or  left;  to  them,  and  to  the  people,  all 
powers,  not  expressly  delegated  to  the  National  Government,  are 
reserved.'  Upon  looking  into  the  Constitution  it  will  be  found 
that  but  a  few  of  the  articles  of  that  instrument  could  be  carried 
into  practical  effect  without  the  existence  of  the  States. 

"Two  of  the  great  departments  of  the  government,  the  Execu- 
tive and  the  Legislative,  depend  upon  the  exercise  of  the  powers 
or  upon  the  people  of.  the  States.  The  Constitution  guarantees 
to  the  States  a  republican  form  of  government,  and  protects  each 
against  invasion  or  domestic  violence.  Such  being  the  separate 
and  independent  condition  of  the  States  in  our  complex  system, 
as  recognized  by  the  Constitution,  and  the  existence  of  which  is 
so  indispensable,  that,  without  them,  the  General  Government 
itself  would  disappear  from  the  family  of  nations,  it  would  seem 
to  follow,  as  a  reasonable,  if  not  a  necessary  consequence,  that 
the  means  and  instrumentalities  employed  for  carrying  on  the 
operations  of  their  government  for  preserving  their  existence,  and 
fulfilling  the  high  and  responsible  duties  assigned  to  them  in  the 
Constitution,  should  be  left  free  and  unimpaired;  should  not  be 
liable  to  be  crippled,  much  less  defeated  by  the  taxing  power  of 
another  government,  which  power  acknowledges  no  limits  but 


UNITED  STATES   SUPREME   COURT  DECISIONS.  119 

the  will  of  the  legislative  body  imposing  the  tax.  And,  more 
especially,  those  means  and  instrumentalities  which  are  the 
creation  of  their  sovereign  and  reserved  rights,  one  of  which  is 
the  establishment  of  the  Judicial  Department,  and  the  appoint- 
ment of  officers  to  administer  their  laws.  Without  this  power, 
and  the  exercise  of  it,  we  risk  nothing  in  saying  that  no  one  of 
the  States,  under  the  form  of  government  guaranteed  by  the 
Constitution  could  long  preserve  its  existence.  A  despotic  gov- 
ernment might.  We  have  said  that  one  of  the  reserved  powers 
was  to  establish  a  judicial  department,  it  would  have  been  more 
accurate,  and  in  accordance  with  the  existing  state  of  things  at 
the  time,  to  have  said  the  power  to  maintain  a  judicial  depart- 
ment. All  of  the  thirteen  States  were  in  the  possession  of  this 
power,  and  had  exercised  it  at  the  adoption  of  the  Constitution ; 
and  it  is  not  pretended  that  any  grant  of  it  to  the  Federal  Govern- 
ment is  found  in  that  instrument.  It  is,  therefore,  one  of  the 
sovereign  powers  vested  in  the  States  by  their  constitutions, 
which  remained  unaltered  and  unimpaired,  and  in  respect  to 
which  the  State  is  as  independent  of  the  General  Government  as 
that  government  is  independent  of  the  States. 

"The  supremacy  of  the  General  Government,  therefore,  so 
much  relied  on  in  the  argument  of  the  counsel  for  the  plaintiff 
in  error,  in  respect  to  the  question  before  us,  cannot  be  main- 
tained. The  two  governments  are  upon  an  equality,  and  the 
question  is  whether  the  power  'to  lay  and  collect  taxes'  enables 
the  General  Government  to  tax  the  salary  of  a  judicial  officer  of 
the  State,  which  officer  is  a  means  or  instrumentality  employed 
to  carry  into  execution  one  of  its  most  important  functions,  the 
administration  of  the  laws,  and  which  concerns  the  exercise  of 
a  right  reserved  to  the  States. 

"We  do  not  say  the  mere  circumstance  of  the  establishment 
of  the  Judicial  Department,  and  the  appointment  of  officers  to 
administer  the  laws,  being  among  the  reserved  powers  of  the 
States,  disables  the  General  Government  from  levying  the  tax,  as 
that  depends  upon  the  express  power  'to  lay  and  collect  taxes' 
but  it  shows  that  it  has  an  original  inherent  power  never  parted 
with,  and  in  respect  to  which  the  supremacy  of  that  government 
does  not  exist,  and  is  of  no  importance  in  determining  the  ques- 
tion; and  further,  that  being  an  original  and  reserved  power, 


120  AMERICAN   ELEMENTARY  LAW. 

and  the  judicial  officers  appointed  under  it  being  a  means  or 
instrumentality  employed  to  carry  it  into  effect,  the  right  and 
necessity  of  its  unimpaired  exercise,  and  the  exemption  of  the 
officer  from  taxation  by  the  Federal  Government,  stand  upon 
as  solid  a  ground  and  are  maintained  by  principles  and  reasons 
as  cogent  as  those  which  led  to  the  exemption  of  the  Federal  offi- 
cer in  Dobbins  v.  Erie  Co.  from  taxation  by  the  State;  for,  in 
this  respect,  that  is,  in  respect  to  the  reserved  powers,  the  State 
is  as  sovereign  and  independent  as  the  General  Government. 
And  if  the  means  and  instrumentalities  employed  by  that  govern- 
ment to  carry  into  operation  the  powers  granted  to  it  are,  neces- 
sarily, and  for  the  sake  of  self-preservation,  exempt  from  taxation 
by  the  States,  why  are  not  those  of  the  States  depending  upon 
their  reserved  powers,  for  like  reasons,  equally  as  exempt  from 
federal  taxation?  Their  unimpaired  existence  in  the  one  case 
is  as  essential  as  in  the  other.  It  is  admitted  that  there  is  no 
express  provision  in  the  Constitution  that  prohibits  the  General 
Government  from  taxing  the  means  and  instrumentalities  of  that 
government.  In  both  cases  the  exemption  rests  upon  necessary 
implication,  and  is  upheld  by  the  great  law  of  self-preservation; 
as  any  government,  whose  means  employed  in  conducting  its 
operations,  if  subject  to  the  control  of  another  and  distinct  gov- 
ernment, can  exist  only  at  the  mercy  of  that  government.  Of 
what  avail  are  these  means  if  another  power  may  tax  them  at 
discretion  ? 

' '  But  we  are  referred  to  The  Veazie  Bk.  v.  Fenno,  8  "Wall.  533 
(75  U.  S.  XIX,  482),  in  support  of  the  power  of  taxation.  That 
case  furnishes  a  strong  illustration  of  the  position  taken  by  the 
Chief  Justice  in  McCulloch  v.  Maryland,  namely : '  That  the  power 
to  tax  involves  the  power  to  destroy.' 

"The  power  involved  was  one  which  had  been  exercised  by 
the  States  since  the  foundation  of  the  government  and  had  been, 
after  the  lapse  of  three  quarters  of  a  century,  annihilated  from 
excessive  taxation  by  the  General  Government,  just  as  the  judicial 
office  in  the  present  case  might  be,  if  subject,  at  all,  to  taxation 
by  that  government.  But,  notwithstanding  the  sanction  of  this 
taxation  by  the  majority  of  the  court,  it  is  conceded,  in  the 
opinion,  that  'the  reserved  rights  of  the  States,  such  as  the  right 
to  pass  laws;  to  give  effect  to  laws  through  executive  action;  to 


UNITED  STATES  SUPREME  COURT  DECISIONS.  121 

administer  justice  through  the  courts,  and  to  employ  all  necessary 
agencies  for  legitimate  purposes  of  State  Government,  are  not 
proper  subjects  for  the  taxing  power  of  Congress.'  This  con- 
cession covers  the  case  before  us,  and  adds  the  authority  of  this 
court  in  support  of  the  doctrine  which  we  have  endeavored  to 
maintain.' ' 

Kohl  v.  United  States,  1  Otto,  367,  decided  March  27,  1876. 

This  was  a  proceeding  by  the  United  States  Government  to 
condemn  a  site  for  a  postoffice  in  the  city  of  Cincinnati.  The 
opinion  was  delivered  by  Mr.  Justice  Strong  and  is  in  part  as 
follows: 

' '  It  has  not  been  seriously  contended  during  the  argument  that 
the  United  States  Government  is  without  the  power  to  appropriate 
lands  or  other  property  within  the  States  for  its  own  uses,  and 
to  enable  it  to  perform  its  proper  functions.  Such  an  authority 
is  essential  to  its  independent  existence  and  perpetuity.  These 
cannot  be  preserved  if  the  obstinacy  of  a  private  person,  or  if  any 
other  authority,  can  prevent  an  acquisition  of  the  instrument  or 
means  by  which  alone  governmental  functions  can  be  performed. 
The  powers  vested  by  the  Constitution  in  the  General  Govern- 
ment demand  for  their  exercise  the  acquisition  of  lands  in  all 
the  States.  These  are  needed  for  forts,  armories  and  arsenals, 
for  navy  yards  and  lighthouses,  for  customhouses,  postoffices, 
and  courthouses,  and  for  other  public  uses.  If  the  right  to 
acquire  property  for  such  uses  may  be  made  a  barren  right  by 
the  unwillingness  of  property  holders  to  sell,  or  by  the  action 
of  a  State  prohibiting  a  sale  to  the  Federal  Government,  the  con- 
stitutional grants  of  power  may  be  rendered  nugatory,  and  the 
Government  is  dependent  for  its  practical  existence  upon  the 
will  of  a  State,  or  even  upon  that  of  a  private  citizen.  This  can- 
not be.  No  one  doubts  the  existence  in  the  state  governments 
of  the  right  of  eminent  domain — a  right  distinct  from  and  para- 
mount to  the  right  of  ultimate  ownership.  It  grows  out  of  the 
necessities  of  their  being,  not  out  of  the  tenures  by  which  the 
lands  are  held.  It  may  be  exercised,  though  the  lands  are  not 
held  by  grant  from  the  Government,  either  mediately  or  imme- 
diately, and  independent  of  the  consideration  whether  they  would 
escheat  to  the  Government  in  case  of  a  failure  of  heirs.    The 


322  AMERICAN   ELEMENTARY   LAW. 

right  is  the  offspring  of  political  necessity ;  and  it  is  inseparable 
from  sovereignty,  unless  denied  to  it  by  its  fundamental  law. 
Vatt,  ch.  20,  34 ;  Bynk.  lib.  2,  eh.  15 ;  Kent,  Com.,  338-340 ;  Cooley, 
Const.  Lim.,  584  et  sequentia.  But  it  is  no  more  necessary  for 
the  exercise  of  the  powers  of  a  state  government  than  it  is  for 
the  conceded  powers  of  the  Federal  Government.  That  Govern- 
ment is  as  sovereign  within  its  sphere  as  the  States  are  within 
theirs.  True  its  sphere  is  limited.  Certain  subjects  only  are 
committed  to  it ;  but  its  power  over  those  subjects  is  as  full  and 
complete  as  is  the  power  of  the  States  over  the  subjects  to  which 
their  sovereignty  extends.  The  power  is  not  changed  by  its 
transfer  to  another  holder. 

"But,  if  the  right  of  eminent  domain  exists  in  the  Federal 
Government,  it  is  a  right  which  may  be  exercised  within  the 
States,  so  far  as  it  is  necessary  to  the  enjoyment  of  the  powers 
conferred  upon  it  by  the  Constitution.  In  Ableman  v.  Booth, 
21  How.,  523  (62  U.  S.  XVI.,  175),  Chief  Justice  Taney  described 
in  plain  language  the  complex  nature  of  our  government,  and 
the  existence  of  two  distinct  and  separate  sovereignties  within 
the  same  territorial  space,  each  of  them  restricted  in  its  powers, 
and  each,  within  its  sphere  of  action  prescribed  by  the  Consti- 
tution of  the  United  States,  independent  of  the  other.  Neither 
is  under  the  necessity  of  applying  to  the  other  for  permission 
to  exercise  its  lawful  powers.  Within  its  own  sphere,  it  may 
employ  all  the  agencies  for  exerting  them  which  are  appropriate 
or  necessary,  and  which  are  not  forbidden  by  the  law  of  its  being. 
When  the  power  to  establish  postoffices  and  to  create  courts 
within  the  States  was  conferred  upon  the  Federal  Government, 
included  in  it  was  authority  to  obtain  sites  for  such  offices  and 
for  courthouses,  and  to  obtain  them  by  such  means  as  were  known 
and  appropriate.  The  right  of  eminent  domain  was  one  of  those 
means  well  known  when  the  Constitution  was  adopted,  and  em- 
ployed to  obtain  lands  for  public  uses.  Its  existence,  therefore, 
in  the  grantee  of  that  power,  ought  not  to  be  questioned.  The 
Constitution  itself  contains  an  implied  recognition  of  it  beyond 
what  may  justly  be  implied  from  the  express  grants.  The  fifth 
Amendment  contains  a  provision  that  private  property  shall  not 
be  taken  for  public  use  without  just  compensation.    What  is  that 


UNITED  STATES  SUPREME   COURT  DECISIONS.  123 

but  an  implied  assertion,  that,  on  making  just  compensation,  it 
may  be  taken?" 

Munn  v.  The  People  of  Illinois,  4  Otto,  113,  decided  March  1st, 
1877. 

This  was  a  case  involving  the  right  of  the  State  of  Illinois  to 
fix  by  statute  maximum  rates  which  could  be  charged  for  the 
use  of  grain  elevators  in  the  city  of  Chicago.  Munn  contended, 
among  other  things,  that  such  regulation  was  contrary  to  the 
Fourteenth  Amendment  to  the  Federal  Constitution  which  de- 
clares that  no  State  shall  "  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 

In  considering  this  branch  of  the  case  the  court  took  up  the 
matter  historically  and  traced  the  principle  embodied  in  the 
foregoing  provision  through  Magna  Charta  into  the  constitutions 
of  the  various  States  and  into  the  Federal  Constitution.  In  this 
discussion  Chief  Justice  Waite  says: 

"When  the  people  of  the  United  Colonies  separated  from 
Great  Britain,  they  changed  the  form,  but  not  the  substance,  of 
their  government.  They  retained  for  the  purposes  of  govern- 
ment all  the  powers  of  the  British  Parliament  and,  through  their 
State  Constitutions  or  other  forms  of  social  compact,  undertook 
to  give  practical  effect  to  such  as  they  deemed  necessary  for 
the  common  good  and  the  security  of  life  and  property.  All  the 
powers  which  they  retained  they  committed  to  their  respective 
States,  unless  in  express  terms  or  by  implication  reserved  to 
themselves.  Subsequently,  when  it  was  found  necessary  to  es- 
tablish a  national  government  for  national  purposes  a  part  of 
the  powers  of  the  States  and  of  the  people  of  the  States  was 
granted  to  the  United  States  and  to  the  people  of  the  United 
States.  This  grant  operated  as  a  further  limitation  upon  the 
powers  of  the  States,  so  that  now  the  governments  of  the  States 
possess  all  the  powers  of  the  Parliament  of  England,  except  such 
as  have  been  delegated  to  the  United  States'  or  reserved  by  the 
people.  The  reservations  by  the  people  are  shown  in  the  pro- 
hibitions of  the  constitutions." 


PART  III. 
LAW  GOVERNING  CONDUCT  OF  PERSONS. 


CHAPTER  I. 

MUNICIPAL    LAW    AND    ITS    SUBJECT    MATTER. 
Definition. 

Law  is  a  continuous  rule  of  being  or  action  established  by 
power  capable  of  enforcing  it. 

The  primary  idea  of  the  word  is  to  lay  down,  to  establish,  to 
impose.  This  carries  the  idea  of  an  authoritative  law-giver. 
The  second  idea  is  obligation  on  those  subject  to  the  rule.  The 
law  being  supported  by  authority,  it  must  be  observed  by  those 
to  whom  it  applies.  A  third  idea  is  command,  or  the  expression 
of  mandatory  will,  as  distinguished  from  request  and  advice. 
The  fourth  idea  is  continuity.  It  is  a  rule  to  be  observed  habit- 
ually and  constantly,  not  for  one  occasion  only.  The  fifth  idea 
is  sanction  or  penalty.  As  the  law  is  to  be  obeyed,  and  as  its 
subjects  may  not  always  obey  willingly,  there  must  be  penalty 
provided  for  its  violation,  and  enforced  against  all  those  who 
disobey. 

These  are  all  the  essential  elements  of  law:  (1)  A  law-giver, 
having  power  to  enforce  his  will;  (2)  a  person  or  persons  subject 
to  and  required  to  observe  this  will;  (3)  a  command  or  authorita- 
tive expression  of  this  will;  (4)  the  continuous  nature  of  the 
command;  (5)  a  penalty  attached  to  disobedience. 

It  is  apparent  that  many  rules  of  action  called  laws  do  not 
possess  all  these  characteristics.  This  is  only  a  mode  of  saying 
that  the  word  law  has  shared  the  fate  common  to  so  many  of  our 
English  words,  and  has  many  meanings  varying  more  or  less 
from  its  primary  and  strict  significance.  These  variations  in 
its  meaning  occur  even  with  regard  to  political  and  governmental 
affairs.    The  expressions,  International  Law  and  Municipal  Law, 


MUNICIPAL  LAW  AND  ITS  SUBJECT   MATTER.  125 

are  equally  current;  but  it  requires  only  a  moment's  thought  to 
see  that  in  the  latter  the  word  is  used  in  its  strict  sense,  carrying 
all  the  ideas  set  out  above;  whereas,  in  the  former,  the  use  is 
much  less  accurate.  Each  use  is,  hov/ever,  accepted  and  ap- 
proved. 

International  Law  is  a  system  of  rules  recognized  among  civ- 
ilized nations  for  the  government  of  their  conduct  among  them- 
selves. These  rules  have  been  established  by  usage  and  custom, 
rather  than  by  antecedent  agreement  or  authoritative  enunciation. 
They  do  not  emanate  from  any  political  power  having  jurisdiction 
over  the  nations  yielding  obedience  to  them,  and  depend  more 
upon  "the  consent  of  the  governed"  and  on  moral  sanction  than 
upon  force.  Some  of  these  rules  are  of  such  long  standing  and 
are  so  thoroughly  recognized  that  to  disregard  them  would 
practically  place  the  offending  power  outside  the  pale  of  civilized 
nations,  and,  if  war  ensued  from  such  violation,  would  practically 
combine  all  other  sovereigns  recognizing  the  rules  of  international 
law  against  the  offender.  Other  rules  are  not  nearly  so  well  es- 
tablished, and  their  enforcement  rests  upon  moral  suasion  and 
comity  alone. 

Municipal  Law  deals  with  the  organization  and  maintenance 
of  government,  the  administration  of  its  internal  affairs,  and  the 
conduct  of  individuals;  and,  as  these  are  all  subject  to  the 
same  sovereign  political  power,  capable  of  enforcing  its  will,  they 
are  laws  in  the  true  sense.  The  law-giver  is  the  sovereign ;  those 
subject  to  the  law  are  the  various  governmental  agencies  created 
by  the  sovereign,  and  natural  and  artificial  persons  within  its 
jurisdiction  who  are  bound  to  obey.  The  rules  are  mandatory, 
not  persuasive  or  advisory  and  continuous,  operating  uniformly. 
Tney  are  enforced  by  sanctions  prescribed  by  the  sovereign,  con- 
sisting either  in  reward  for  obedience,  prevention  of  disobedience, 
or  punishment  for  disobedience  accomplished. 

Many  definitions  of  Municipal  Law  have  been  given.  Probably 
the  most  familiar  one  is  that  by  Blackstone:  "A  rule  of  civil  con- 
duct prescribed  by  the  supreme  power  in  the  State,  commanding 
what  is  right,  and  prohibiting  what  is  wrong."  (I  Blackstone 's 
Commentaries,  44.)  Much  has  been  written  with  reference  to 
this  definition,  part  in  criticism  and  part  in  commendation.  The 
criticism  has  been  directed  mainly  toward  the  last  phrase — "com- 


126  AMERICAN  ELEMENTARY  LAW. 

manding  what  is  right  and  prohibiting  what  is  wrong" — charging 
that  this  introduces  the  idea  of  moral  quality  into  the  law  itself ; 
whereas,  moral  considerations,  strictly  speaking,  are  addressed  to 
and  should  control  the  law-making  power  in  determining  what 
rule  of  conduct  should  be  established,  and  do  not  enter  into  the 
validity  or  invalidity  of  the  rule  after  it  has  been  authoritatively 
determined  and  announced.  In  deference  to  this,  numerous 
writers  adopt  the  first  phrase  as  a  complete  definition.  Again, 
criticism  has  been  directed  toward  the  word  "prescribed,"  al- 
leging that  it  makes  too  emphatic  the  idea  of  antecedent  announce- 
ment or  pre-writing.  These  latter  critics  seek  to  justify  their 
objections  by  citation  of  numerous  instances  in  which  courts  have 
determined  and  enforced  the  claims  of  litigants  when  no  directly 
applicable  written  law  or  precedent  could  be  found  for  so  doing. 
The  correctness  of  these  criticisms  depends  upon  the  view  taken 
as  to  such  judicial  enunciations.  If  they  be  looked  upon  as 
creating  new  rules  of  conduct,  the  criticism  is  just.  If,  however, 
they  be  regarded  simply  as  declaratory  of  rules  that  have  all  the 
while  existed  in  the  will  and  mind  of  the  sovereign,  and  which 
are  included  in  the  general  principles  adopted  and  announced  by 
it  to  regulate  conduct,  but  which  have  not  theretofore  been  en- 
forced specifically  because  no  facts  to  which  they  were  applicable 
had  been  presented  to  the  courts,  then  the  criticism  is  unjust. 
Each  of  these  views  has  its  advocates  and  its  arguments.  Per- 
sonally, I  hold  to  the  latter. 

Bouvier's  Law  Dictionary  defines  law  as  follows:  "That  which 
is  laid  down;  that  which  is  established.  A  rule  or  method  of 
action,  or  order  of  sequences. 

' '  The  rules  and  methods  by  which  society  compels  or  restrains 
the  action  of  its  members. 

' '  The  aggregate  of  those  rules  and  principles  of  conduct  which 
the  governing  power  in  a  community  recognizes  as  those  which 
it  will  enforce  or  sanction,  and  according  to  which  it  will  regulate, 
limit,  or  protect  the  conduct  of  its  members." 

The  first  of  these  definitions  by  Bouvier  gives  the  general  con- 
ception of  law.  It  is  appreciably  broader  than  the  one  we  have 
given  above,  including  in  it  order  of  sequence  as  well  as  author- 
itative command.  This  was  evidently  done  so  as  to  include  the 
now  common  use  of  the  word  in  relation  to  the  operations  of 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  127 

nature.  If  we  limit  our  thought  of  nature  to  the  material  uni- 
verse and  its  processes,  the  latter  become  simply  orders  of  se- 
quence; if,  however,  we  look  through  nature  to  its  Author,  we 
find  that  the  orders  of  sequence  have  their  origin  in  an  authori- 
tative and  intelligent  will  to  which  their  uniformity  and  contin- 
uity are  referable. 

The  second  definition  of  the  three  quoted  is  broader  than 
municipal  law,  and  embraces  all  social  rules  and  restraints  upon 
conduct. 

The  third  is  quite  an  accurate  definition  of  municipal  law  as 
dealing  directly  with  the  conduct  of  individuals.  This  conduct 
is  the  principal  subject  matter  of  municipal  law,  and  the  defini- 
tion may  therefore  be  accepted  as  good  as  far  as  it  extends. 

There  is,  however,  another  point  of  view  which  seems  to  me 
of  importance  in  our  American  jurisprudence,  which  is  not  cov- 
ered adequately  in  any  of  the  definitions  quoted,  or  others  with 
which  I  am  familiar,  but  which  is  necessarily  involved  in  our 
institutional  form  of  government.  Our  constitutions  are  laws, 
yet  there  is  much  in  them  which  is  not  applicable  to  or  designed 
to  regulate  the  conduct  of  individuals  as  such.  They  are  creative 
instruments  and  result  in  legal  institutions  to  which  they  give 
life  and  for  which  they  prescribe  the  laws  of  being.  These 
creative  and  functional  provisions  seem  to  me  to  be  readily 
separable  from  the  rules  of  conduct  established  by  the  sovereign 
for  the  government  of  its  members.  If  this  be  true,  the  definition 
of  law  ought  to  be  broad  enough  to  include  both  classes  of  rules. 

I  suggest  the  following  definitions: 

Law,  as  a  general  concept,  is  a  continuous  and  mandatory  rule 
of  being  or  action  established  by  power  capable  of  enforcing  it. 

A  municipal  law  is  a  continuous  rule  of  being  or  conduct 
established  and  enforced  by  the  supreme  political  power  having 
jurisdiction. 

The  law  of  any  nation  or  State  is  the  system  or  mass  of  such 
rules  established  and  enforced  by  it. 

Municipal  Law  includes  all  the  rules  established  by  any  nation 
or  State  for  the  formation  and  maintenance  of  its  government; 
the  regulation  of  the  conduct  of  its  agencies;  for  the  regulation 
of  all  those  subject  to  its  authority.  It  includes  all  the  positive 
law  of  a  State. 


128  AMERICAN   ELEMENTARY   LAW. 

Under  these  definitions  may  be  treated  all  phases  of  municipal 
law,  institutional  and  individual. 

DIFFERENT    KINDS    OF    MUNICIPAL    LAW. 

There  are  many  kinds  of  municipal  law,  of  which  the  follow- 
ing are  probably  the  most  important: 

Unwritten.  Written. 

Substantive.  Adjective. 

Public  or  General.  Private  or  Special. 

Constitutional.  Statutory. 

Common.  Roman. 

Civil  Criminal. 

Equity.  Common  Law. 

Contract.  Non-Contract. 

Law-Merchant.  Ecclesiastical. 

Ex  Post  Facto.  Retroactive. 

Military.  Martial. 
Maritime 

THE    UNWRITTEN    OR    COMMON   LAW. 

Definition. — Under  this  head  are  embraced  all  those  general 
rules,  both  as  to  rights  and  procedure,  which  have  never  been 
formulated  in  statutes  or  constitutional  provisions,  but  which 
are  nevertheless  enforced  by  the  government. 

Its  Extent. — This  unwritten  law  embraces  by  far  the  larger 
part  of  the  law  of  the  land.  Our  statutes  and  constitutions  are, 
in  a  large  measure,  meaningless,  except  as  aided,  construed  and 
supplemented  by  it,  and  a  very  large  portion  of  our  rights  and 
duties  are  dependent  on  it  exclusively. 

Its  Creation. — In  the  language  of  the  law,  these  rules  are 
legally  adopted  customs,  which  have  been  recognized  and  enforced 
from  "time  when  the  memory  of  man  runneth  not  to  the  con- 
trary," and  are,  hence,  considered  as  authoritative  expressions 
of  the  sovereign  will.  It  is  not  necessary  to  undertake  to  trace 
their  origin.  As  the  legislative  function  embraces  the  duty  of 
law-making  as  well  as  the  power  of  so  doing,  where  a  condition 
exists  in  which  certain  conduct  is  permitted  or  approved  by 
usage  and  common  consent,  unless  some  legislative  action  is  taken 
in  opposition  to  or  in  correction  of  it,  this  inaction  is  an  authori- 


MUNICIPAL   LAW   AND   ITS  SUBJECT    MATTER.  129 

tative  approval.     This,  at  least,  is  the  very  plausible  theory  fre- 
quently set  forth. 

Probably  the  history  of  Texas  gives  us  as  fine  an  illustration  as 
could  be  gotten.  Texas  was  under  the  dominion  of  the  Spanish 
and  Civil  Law.  The  the  Anglo-American  came,  bringing  with  him 
the  thoughts,  education,  and  habits  of  the  Common  Law.  Almost 
at  once  he  began  the  struggle  for  Common  Law  institutions,  and 
even  before  the  Revolution,  in  many  communities,  a  large  share 
of  the  rights  and  rules  of  conduct  were  based  on  the  Common 
Law.  This  continued,  until  we  find,  in  the  Declaration  of  In- 
dependence and  Constitution  of  the  Republic,  a  most  compre- 
hensive embodiment  of  Common  Law  ideas  and  principles,  and 
in  a  few  years  after  the  independence  of  Texas  was  established  we 
find  Congress,  by  specific  enactment,  repudiating  the  Civil  Law 
and  adopting  the  Common  Law,  as  far  as  applicable  to  existing 
conditions.  Here  the  process  was  that,  on  the  Revolution  be- 
coming effective,  the  pre-existing  rules  of  Civil  Law  continued, 
without  express  legislative  sanction;  and  when  a  change  from 
this  continuous  condition  was  desired,  express  legislation  indi- 
cating this  desire  was  passed.  It  did  not  undertake  to  formulate 
or  write  the  Common  Law,  however,  but  simply  said  that  the 
unwritten  law  of  England  shall  henceforth  be  the  unwritten  law 
of  Texas.  This  unwritten  law,  with  our  Constitution  and  stat- 
utes, is  our  State  law  at  this  time.  As  indicated  by  the  appella- 
tions— unwritten  or  Common  Law — these  laws  have  never  been 
put  into  express  words  or  terms  by  parliament  or  legislature. 
They  are,  in  a  large  part,  founded  on  reason  and  justice,  and 
exist  in  the  minds  and  hearts  of  the  people  and  in  the  precedents 
in  adjudged  cases.  There  are  no  new  principles  brought  into 
them,  but  constant  new  application  of  old  principles  to  new  com- 
binations of  fact.  It  is  this  which  gives  the  English  and  Ameri- 
can law  its  elasticity  and  capacity  to  meet  the  constantly  varying 
conditions  of  advancing  civilization. 

WRITTEN   LAW. 

Constitutional  Law. 

From  the  English  point  of  view  Constitutional  Law  consists 
of  the  fundamental  principles  and  established  customs  and  usages 
which  have  been  recognized  and  enforced  from   time  iinme- 
I 


130  AMERICAN   ELEMENTARY   LAW. 

morial  as  the  foundation  of  the  government.  These,  in  some 
instances,  have  been  embodied  in  great  State  papers,  such  as  the 
Magna  Charta,  etc.,  but  such  instruments  are  regarded  rather  as 
declaratory  than  as  creative. 

From  the  American  point  of  view,  it  includes  the  principles  and 
rules  embodied  in  written  instruments,  adopted  by  direct  act  of 
the  people  as  the  basis  and  charter  of  the  government  founded  by 
them. 

They  are  binding  alike  on  all  governmental  agencies  who  mani- 
fest and  carry  out  the  will  of  the  sovereign  in  other  matters,  as 
they  are  on  private  persons,  and  can  not  be  rightfully  disre- 
garded, set  aside,  or  modified,  except  by  the  people,  as  provided 
in  the  instrument,  or  by  revolution. 

The  Federal  Constitution. 

1.  History. — July  4, 1776,  the  Declaration  of  Independence  was 
passed  by  the  Congress  of  the  Thirteen  United  States  of  America, 
at  Philadelphia. 

November  15,  1777,  delegates  of  the  United  States,  in  Congress 
assembled,  agreed  to  articles  of  confederation  among  the  original 
thirteen  States,  subject  to  approval  by  the  legislatures  of  the 
several  States. 

These  articles  having  been  approved  by  the  several  legislatures 
of  the  several  States,  they  were  ratified  by  Congress  on  July  9, 
1778. 

September  17,  1787,  the  present  Constitution  was  completed 
and  signed  by  the  convention  which  proposed  it.  It  was  ratified, 
at  different  times,  by  different  States,  and  became  operative 
March  4,  1789.     (5  Wheat.,  420.) 

Its  Effect. — With  it  came  into  being  the  Government  of  the 
United  States  of  America.  (19  How.,  397.)  There  has  been 
nothing  like  it  in  the  world 's  history. 

The  government  created  by  it  is  one  of  delegated  powers. 
There  are  three  different  kinds  of  power  recognized  in  it.  There 
is  no  prohibition  of  the  exercise  of  more  than  one  of  these  by  the 
same  officer.  The  legislative  power  is  vested  in  Congress.  It  is 
the  supreme  law  on  all  matters  within  its  scope. 

Amendments. — It  provides  a  method  of  amendment,  and  this 
power  has  been  frequently  exercised ;  there  are  now  fifteen  amend- 
ments— additions  to  the  original  instrument. 


MUNICIPAL  LAW   AND  ITS  SUBJECT   MATTEE.  131 

The  Constitution  of  the  State. 

2.  The  Constitution  of  a  State  is  the  direct  expression  of  the 
sovreign  will  of  the  people.  In  it  they  embody  their  plan  of  gov- 
ernment and  provide  for  all  the  agencies  through  which  they  de- 
sire to  exercise  their  power.  In  it  also  they  reserve  to  themselves 
certain  designated  powers,  which  are  not  to  be  exercised  by  any 
of  their  agents.  As  to  all  matters  within  the  jurisdiction  of  the 
State,  it  is  the  supreme  law,  and  must  be  obeyed.  If  it  should 
undertake  to  deal  with  matters  of  Federal  jurisdiction,  it  would, 
as  to  them,  be  inoperative  and  of  no  effect. 

Statutes. 

Definition. — Statutes  are  written  expressions  of  the  will  of  the 
sovereign,  formulated  and  adopted  by  the  legislature,  or  rather 
the  legislative  department  of  the  government.  They  constitute  by 
far  the  greater  part  of  the  written  law. 

To  be  effective,  they  must  be  enacted  in  conformity  with  the 
Constitution  of  the  government. 

The  scheme  for  legislation  in  the  Federal  and  in  the  State  gov- 
ernments is  practically  the  same.  The  legislative  power  is  vested 
in  the  two  separate  houses  or  bodies  of  officers,  called  respectively 
the  Senate  and  House  of  Representatives.  A  bill,  except  for  rais- 
ing revenue,  may  originate  in  either  house,  but  must  pass  both 
houses  and  be  signed  by  the  presiding  officer  of  each  before  it 
becomes  a  law.  It  must  then  receive  the  approval,  affirmative  or 
negative,  of  the  chief  executive,  or  be  passed  over  his  veto  on  a 
two- thirds  vote  of  each  house. 

The  manner  of  enacting  laws  is  set  out  with  considerable  detail 
in  the  Constitutions  both  State  and  Federal. 

The  effect  of  statutes  passed  by  Congress,  in  conformity  to  the 
Constitution  of  the  United  States,  is  to  establish  the  rule  ex- 
pressed therein  as  a  law,  to  be  obeyed  by  all  persons  subject  to 
the  United  States,  and  it  is  binding  alike  on  the  President  and  the 
heads  of  departments,  the  Federal  judiciary,  and  on  all  State 
officers.  If  it  is  in  not  in  conformity  with  the  Federal  Constitu- 
tion, it  is  binding  on  no  one. 

The  same  is  true  of  enactments  of  the  State  legislatures,  with 
this  additional  statement,  that  they  must  conform  to  the  Con- 
stitution, laws  and  treaties  of  the  Federal  Government,  and  also 
to  the  Constitution  of  the  State.     If  they  meet  these  require- 


132  AMERICAN   ELEMENTARY  LAW. 

ments,  they  must  be  obeyed  by  all;  if  they  do  not,  they  are  not 
law,  and  are  of  no  effect. 

The  constitutionality  of  Federal  and  State  statutes  is  a  matter 
of  judicial  cognizance.  Such  questions  as  to  the  enactments  of 
either  government  may  be  raised  and  decided  in  the  courts  of 
either,  with  this  difference:  If  the  question  be  the  validity  of  a 
Federal  statute,  the  decision  of  the  Supreme  Court  of  the  United 
States  is  alone  final  and  binding  on  all  persons,  while  the  de- 
cision of  the  State  courts  on  such  question  will  not  necessarily  be 
followed  by  the  Federal  courts — they  will  deal  with  the  question 
as  an  original  matter.  If  the  question  be  a  conflict  between  a 
State  stitute  and  the  Federal  Constitution  or  a  treaty,  the  Fed- 
eral courts  will  not  be  bound  by  the  decision  of  the  State  court, 
but  the  latter  must  follow  the  former.  If  the  question  be  a  con- 
flict between  the  statute  and  the  State  Constitution  not  presenting 
a  Federal  question,  the  decisions  of  the  State  courts  are  binding 
on  everyone. 

Treaties. 

A  treaty  is  "A  compact  made  between  two  or  more  independent 
nations  with  a  view  to  the  public  welfare."  Under  our  system 
of  government  the  power  to  make  treaties  is  exclusively  in  the 
United  States.  No  State  with  us  can  enter  into  any  agreement 
with  any  other  State  or  any  foreign  power,  without  the  consent 
of  Congress. 

Treaties  by  the  Federal  Government  are  entered  into  by  the 
combined  action  of  the  President  and  Senate.  By  the  terms  of 
the  Constitution  they  are  declared  to  constitute  a  part  of  the 
supreme  law  and  must  be  observed  by  the  United  States  and  the 
several  state  governments  and  all  private  persons. 

Substantive  Law. 

5.  This  term  is  used  in  contradistinction  to  Adjective  or  Reme- 
dial Law — the  law  of  procedure — and  covers  all  rules  of  conduct 
on  which  primary  rights  rest,  everything  that  goes  into  the  nature 
or  existence  of  legal  rights  and  wrongs,  not  being  mere  rules  of 
procedure  for  the  purpose  of  enforcing  substantive  rights. 

Adjective  Law. 

6.  Adjective  or  Remedial  Law  includes  all  rules  of  procedure 
and  those  rules  which  govern  the  agencies  of  the  government  and 
all  parties  in  seeking  and  obtaining  redress  or  remedy  for  wrongs. 


MUNICIPAL  LAW   AND   ITS   SUBJECT    MATTER.  133 

Public  Law. 

7.  Public  or  general  laws  are  those  which  relate  to  and  operate 
generally  on  all  persons  or  things  included  in  the  class  subject  to 
the  law. 

Private  Law. 

8.  Private  or  special  laws  are  those  which  relate  to  some  par- 
ticular thing  or  persons,  and  do  not  operate  generally  on  all  per- 
sons or  things  of  the  same  kind  and  similarly  situated. 

Common  Law. 

9.  This  term  has  at  least  three  distinct  meanings: 

(1)  As  distinguished  from  Written  Law,  as  we  have  seen  it 
includes  every  rule  enforced  by  the  sovereign  and  not  embraced 
in  constitutional  or  statutory  enactments  or  treaties. 

(2)  As  a  general  system  of  jurisprudence,  it  is  used  to  denote 
the  entire  body  of  English  Law,  written  or  unwritten,  as  distin- 
guished from  the  Roman  or  Civil  Law.  This  is  its  broadest  use, 
and  embraces  in  it  everything  from  those  fundamental  concepts 
and  institutions  which  distinguish  English  and  American  civiliza- 
tion from  that  of  other  developments,  to  the  most  unimportant 
rule  which  governs  in  the  most  trivial  affairs  of  English  or  Amer- 
ican life. 

(3)  In  a  narrower  sense  it  embraces  only  those  principles, 
rules  and  methods  of  procedure  which  govern  the  Common  Law 
Courts,  as  distinguished  from  Courts  of  Equity  and  Ecclesiastical 
Courts. 

Roman  Law. 

10.  Roman  Law  is  the  great  system  of  jurisprudence  which  pre- 
vailed in  the  Roman  Empire,  and  from  there  has  been  transmitted 
through  the  countries  of  Central  and  Southwestern  Europe  and 
their  dependencies  in  all  parts  of  the  world.  It  is  the  only  rival 
of  the  English  Common  Law,  regarded  as  a  system  of  jurispru- 
dence. It  is  of  very  great  importance  to  the  lawyer  of  the  ex- 
treme "West  and  Southwest,  because  of  the  former  jurisdiction  of 
Spain  and  Mexico  over  this  territory  and  the  great  influence 
which  that  fact  has  on  its  law.  In  many  regards  it  is  more  nearly 
allied  to  the  Roman  than  to  the  Common  Law  system.  This  is 
particularly  true  as  to  land  holdings,  marital  relations  or  rights 
of  husband  and  wife,  and  the  system  of  pleading  and  procedure. 


134  AMERICAN   ELEMENTARY   LAW. 

Civil  Law. 

11.  This  term  has  two  distinct  meanings: 

(1)  It  is  often  used  as  equivalent  to  Roman  Law,  as  distin- 
guished from  the  Common.  This  meaning  is  covered  by  the  pre- 
ceding paragraph. 

(2)  It  is  used  in  opposition  to  Criminal  Law,  to  indicate  all 
the  rules  which  determine  and  regulate  the  rights  and  remedies  of 
private  parties  as  between  themselves.  In  this  sense,  it  covers  all 
of  Equity,  Contract,  Tort  or  Non-Contract  Law,  and  much  of  the 
various  other  classes. 

Criminal  Law. 

12.  Criminal  Law  includes  all  the  rules  established  and  en- 
forced to  protect  the  rights  of  the  public  from  violation  by  acts 
of  individuals.  The  Common  Law  is  very  elaborate  and  exhaus- 
tive on  this  subject,  and  is  the  base  of  all  American  Statutory 
Law. 

Equity. 

13.  Equity,  as  a  system  of  law,  includes  all  those  rules  of  sub- 
stantive and  remedial  justice  which  are  recognized  in  and  admin- 
istered through  courts  of  Chancery  as  distinguished  from  Com- 
mon Law  courts. 

In  England  at  an  early  period  the  rules  of  the  Common  Law 
became  fixed  and  changeless.  The  courts  followed  precedent,  and 
were  limited  in  their  jurisdiction  by  the  forms  of  action  adopted. 
The  bringing  of  a  suit  was  not  by  petition  to  the  court,  setting  out 
the  facts  constituting  the  grievance  of  the  party,  and  asking  for 
the  appropriate  remedy,  but  by  application  to  the  clerk  for  the 
issuance  of  a  certain  form  of  writ.  The  clerk  could  not  change 
or  increase  the  kinds  of  writs  which  he  was  authorized  to  issue, 
and  a  party  could  not  get  access  to  the  court  or  judge  without  a 
writ  of  the  appropriate  and  prescribed  form ;  so  that,  if  the  in- 
jury were  one  not  appropriately  falling  into  one  of  the  established 
forms  of  writs,  the  injured  party  was  without  a  remedy. 

As  time  passed  and  the  progress  of  the  world  advanced,  this 
condition  became  intolerable,  and  petitions  for  relief  in  special 
cases  were  made  to  the  King,  as  the  fountain  of  justice,  and  these 
he  referred  for  action  to  his  chief  councilor,  the  Chancellor,  who 
was  keeper  of  the  King's  conscience,  and  later  of  the  Great  Seal 


MUNICIPAL   LAW   AND   ITS  SUBJECT   MATTER.  135 

of  State.  The  Chancellor  granted  or  withheld  relief,  as  the  case 
seemed  to  require.  From  this  grew  the  jurisdiction  of  the  Chan- 
cellor or  Chancery  courts  to  administer  relief  in  cases  of  great 
injustice  in  which  the  Law  courts  could  give  no  relief ;  hence,  we 
find  that  Equity  is  often  spoken  of  as  a  system  of  remedial  jus- 
tice administered  in  courts  of  Chancery  for  the  purpose  of  supple- 
menting the  Law  courts  and  giving  relief  in  necessary  and  mer- 
itorious cases  in  which  the  law,  by  reason  of  its  fixedness  and  the 
inadequacy  of  the  forms  of  action,  could  not  do  justice  to  the 
parties. 

The  same  tendencies  and  influences  which  crystallized  and 
fixed  the  procedure  of  the  Common  Law  courts  asserted  them- 
selves in  the  Chancery  courts,  and  the  instances  in  which  injustice 
would  be  prevented  there,  or,  in  other  words,  the  kind  of  eases 
in  which  relief  would  be  granted  there,  and  the  nature  of  the 
remedies  which  would  be  applied,  gradually  became  reduced  to 
and  governed  by  fixed  rules  or  maxims,  and  unless  the  particular 
complaint  made  to  the'  court  comes  within  some  of  these,  the 
suitor  is  now  as  helpless  in  a  Chancery  court  as  in  a  court  of  Law. 
So  the  early  view,  of  a  system  co-extensive  with  natural  justice, 
no  longer  obtains,  and  the  rules  of  Equity  are  as  fixed  and  un- 
changeable as  those  of  law,  though  they  have  a  broader  scope. 

As  the  primary  purpose  of  Equity  was  to  give  relief  in  cases  in 
which  the  Law  gave  no  remedy,  it  is  a  fundamental  maxim  of 
that  system  that  Equity  will  afford  no  relief  where  there  is  an 
adequate  legal  remedy.  In  some  instances,  however,  the  law 
courts  would  grant  some  kind  of  relief,  but  experience  demon- 
strated that  these  remedies  were  not  adequate,  that  is,  that  they 
fell  short  of  practical  justice  between  the  parties,  and  from  this 
there  grew  up  a  number  of  cases  in  which  Chancery  courts  would 
take  jurisdiction,  although  there  was  some  remedy  at  law.  In 
these  the  aggrieved  party  has  his  choice  of  forum  and  can  sue  in 
either,  and  hence  there  is,  to  a  limited  extent,  a  concurrent  juris- 
diction between  Common  Law  and  Equity  or  Chancery  courts. 
So  we  see  that,  at  this  time,  the  term  Equity  has  the  significance 
given  it  above. 

Contract  Law. 

14.  Sovereignty  recognizes  the  right  in  many  instances  of  per- 
sons to  create,  modify,  or  destroy  legal  rights  and  relations  by 


136  AMERICAN  ELEMENTARY  LAW. 

agreement  among  themselves:  The  rules  of  law  governing  agree- 
ments and  determining  the  legal  effect  and  force  thereof  and 
regulating  the  legal  relations,  and  rights  and  duties  resulting 
therefrom  constitute  Contract  Law. 

Non-contract  or  Tort  Law. 

15.  These  terms  indicate  the  rules  of  law  which  create,  regu- 
late, and  define  the  legal  relations,  rights,  and  duties  of  persons 
in  the  absence  of  agreement  between  them,  and  the  rights  and 
duties  recognized  or  imposed  by  law  as  incidental  to  some  rela- 
tion or  relations  established  between  the  parties  by  agreement. 
The  rules  of  contract  and  of  non-contract  or  tort  law  supplement 
each  other  and  taken  together  comprise  the  entire  mass  of  rules 
of  law  regulating  and  determining  the  rights  and  duties  of  in- 
dividuals as  between  or  among  themselves. 

The  Law  Merchant. 

16.  This  embraces,  first,  those  rules  and  customs  brought  by  the 
merchants  of  Continental  Europe  into  England  when  they  set  up 
their  trading  establishments  in  London;  second,  these  rules,  as 
modified  by  contact  with  the  English  Law,  and  as  finally  incor- 
porated into  the  English  system  as  a  substantial  part  of  it,  as  they 
exist  today. 

At  the  time  the  German  merchants  came  to  London,  Law  was 
largely  personal  instead  of  local.  In  their  primitive  state  men 
were  organized  in  familes  and  tribes  which  had  no  fixed  locations. 
As  they  wandered  they  carried  their  tribal  customs  and  rules  with 
them.  This  fact  influenced  many  of  our  laws  in  their  formative 
period,  but  none  more  than  the  rules  now  under  consideration. 
The  foreign  merchants  brought  their  business  rules  and  customs 
with  them,  and  naturally  insisted  upon  their  observance  by  those 
with  whom  they  dealt.  These  were,  in  many  respects,  principally 
as  to  consideration  of  contracts,  assignability  of  choses  in  action, 
and  extension  by  law  of  the  time  for  the  payment  of  debts,  di- 
rectly opposed  to  the  local  Common  Law.  Conflict  was  inevit- 
able, and  the  result  was  a  compromise  consisting  in  the  body  of 
rules  governing  commercial  business  which  we  now  designate  the 
law  merchant. 

Ecclesiastical  Law. 

17.  The  law  governing  the  Church  and  things  ecclesiastical. 
William  the  Conqueror  separated  the  civil  and  ecclesiastical  juris- 


MUNICIPAL.   LAW   AND   ITS   SUBJECT    MATTER.  137 

dictions  of  the  English  tribunals,  assigning  to  the  latter  authority 
over  all  matters  pertaining  directly  to  the  Church,  the  order  of 
the  clergy  and  their  conduct  in  religious  matters,  and  to  such  mat- 
ters affecting  non-ecclesiastical  persons  as  related  to  ''the  health 
of  the  Soul."  This  was  a  very  indefinite  jurisdiction,  and  under 
it  the  courts  took  cognizance  of  matters  pertaining  to  the  mar- 
riage state,  both  as  to  the  celebration  of  the  ceremony  and  its  dis- 
solution by  divorce,  and  then  of  matters  testamentary,  guardian- 
ship, and  kindred  subjects.  No  such  separate  jurisdiction  exists 
in  America,  and  even  in  England  the  subject  matter  of  this  law 
and  the  jurisdiction  of  the  ecclesiastical  courts  have  been  much 
reduced  in  later  years,  and  now  relate  almost  exclusively  to  the 
affairs  of  the  Church,  considered  as  an  established  legal  insti- 
tution. 

Ex  Post  Facto  Laws. 

18.  Ex  Post  Facto  Laws  are  written  criminal  laws  attempting 
to  deal  with  conduct  after  it  has  taken  place,  to  the  substantial 
prejudice  of  the  person  guilty  of  such  conduct.  They  are  usually 
divided  into  classes  as  follows: 

(1)  Those  which  make  conduct  which  was  innocent  when  it 
transpired  punishable  af  terward  as  a  crime. 

(2)  Those  which  aggravate  the  crime;  that  is,  increase  the 
degree  of  criminality  in  an  act  after  it  has  been  committed. 

(3)  Those  which  increase  the  punishment  for  a  crime  after  it 
has  been  committed. 

(4)  Those  which  change  the  rules  of  evidence  so  as  to  require 
less  proof  to  support  a  conviction  than  was  required  when  the 
offense  was  done.     (Story's  Constitution,  212;  3  Dall.,  390.) 

These  are  all  clearly  ex  post  facto  laws,  but  it  may  be  doubted 
whether  they  include  all  laws  subject  to  this  objection. 

Such  laws  are  forbidden  by  the  Constitution  of  the  United 
States  and  of  Texas,  and,  I  think,  of  every  State  in  the  Union. 

Retroactive  Law. 

19.  Retroactive  and  Retrospective  Laws  are  civil  enactments 
relating  to  past  matters.  The  objections  to  changing  past  condi- 
tions, as  to  civil  rights  and  remedies,  are  not  so  great  as  in  crim- 
inal cases,  yet  they  are  sufficient  to  have  caused  the  insertion  in 
many  constitutions  of  a  clause  prohibiting  such  action  by  the  leg- 
islature.   This  clause  is  confined,  in  its  operation,  to  laws  which 


138  AMERICAN   ELEMENTARY   LAW. 

will  affect  vested  rights  of  property.  The  legislature  may  pass 
acts  which  will  take  away  remedies  or  change  personal  rights 
without  violating  its  provisions,  so  long  as  the  change  is  not  so 
great  as  to  interfere  with  or  impair  vested  rights. 

Military  Law. 

20.  Military  Law  consists  of  that  system  of  rules  and  regula- 
tions which  is  provided  for  the  government  of  soldiers  and  of  per- 
sons belonging  to  the  army  and  navy.  "The  law  applicable  to 
military  service  and  affairs. ' '  This  law  does  not  apply  to  persons 
not  engaged  in  military  service.  In  the  United  States  it  con- 
sists of  constitutional  and  statutory  provisions,  supplemented  by 
a  few  Common  Law  rules,  all  interpreted  according  to  Common 
Law  principles.  This  law  is  administered  through  military  tri- 
bunals—courts-martial. 

Martial  Law. 

21.  ' '  This  branch  of  law  may  be  defined,  in  brief,  as  the  law  of 
necessity  and  force,  invoked  for  the  protection  of  society,  when 
and  where  the  civil  law  is  paralyzed. "  (Studies  in  Juridical  Law. 
113.)  "Martial  Law  is  the  law  of  necessity,  the  ordinary  law, 
and  the  laws  of  nature  intermingled  in  such  manner  and  propor- 
tions as  the  military  power  deems  to  be  required  by  the  particular 
emergency,  when  it  supersedes  or  otherwise  takes  a  control  su- 
perior to  the  civil  power."  (1  Bish.  New  Criminal  Law,  Sec.  45.) 
This  is  a  necessity  of  war.  It  becomes  operative  only  upon  actual 
hostilities,  and  continues  only  for  such  time  thereafter  as  good 
order  and  necessity  require.  "Military  Law  is  that  branch  of 
the  law  of  the  land  prescribed  by  the  government  for  the  conduct 
of  the  citizen  as  a  soldier.  It  is  administered  by  military  tri- 
bunals, and  is  in  force  in  time  of  peace  as  well  as  war.  But  it  does 
not  suspend  the  civil  law  for  any  breach  of  which  the  soldier  is 
liable  to  the  same  trial  and  punishment  as  the  civilian.  Martial 
Law,  on  the  other  hand,  is  the  military  rule  and  authority  in  time 
of  war."     (Studies  in  Juridical  Law,  113.) 

Maritime  Law. 

22.  This  has  been  defined  as  "that  system  of  law  which  par- 
ticularly relates  to  the  affairs  and  business  of  the  sea,  to  ships, 
their  crews  and  navigation,  and  to  the  maritime  conveyance  of 
persons  and  property."     (Bouvier's  Law  Dictionary.) 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  139 

"The  maritime  law  is  a  law  common  to  all  nations.  It  consists 
of  certain  principles  of  equity  and  usages  of  trade  which  general 
convenience  and  a  common  sense  of  justice  have  established  in  all 
the  commercial  countries  of  the  world,  to  regulate  the  dealing  and 
intercourse  of  merchants  and  mariners  in  matters  relating  to  the 
sea."     (Benedict's  Admiralty.) 

Purposes  of  Sovereignty   in  Establishing  Government  and  Making 
Laws. 

In  States  in  which  sovereignty  is  lodged  in  the  great  mass  of 
individuals  composing  the  community  the  purposes  for  which 
government  is  maintained  and  laws  are  enacted  are  first,  to  pro- 
tect the  people  as  a  whole  in  their  civil  and  political  rights,  and 
second,  to  protect  each  individual  member  of  the  community  in 
his  liberty  and  just  opportunities  and  privileges.  The  basic 
thought  in  liberty,  right  and  justice  is  the  same,  equality  of  op- 
portunity and  in  the  enjoyment  of  those  benefits  and  advantages 
which  opportunity  brings  when  properly  and  justly  utilized. 
Properly  organized  government  and  properly  determined  law  can 
have  no  other  end  but  these.  So  far  as  those  who  make  the  laws 
appreciate  and  apply  this  fundamental  truth  their  government 
and  law  will  be  good,  so  far  as  they  disregard  it  their  government 
will  be  bad. 

These  ends  are  secured  by  determining  what  courses  of  conduct 
will  lead  to,  and  what  courses  of  conduct  will  interfere  with,  the 
accomplishment  of  this  purpose  and  in  encouraging  and  enjoin- 
ing the  former  and  forbidding  and  punishing  the  latter.  When 
a  certain  course  of  conduct  is  enjoined  by  law,  this  is  equivalent 
to  a  declaration  by  the  law-making  power  that  such  conduct  is 
approved  by  it  as  leading  to  liberty,  right,  and  justice.  When 
a  certain  course  of  conduct  is  forbidden  by  the  law-making  author- 
ity, this  is  equivalent  to  a  declaration  by  that  authority  that  such 
conduct  will  no1#lead  to  the  public  good  or  the  individual  well 
being  of  those  subject  to  the  law.  To  state  the  matter  differ- 
ently, every  law,  whether  positive  or  negative,  is  an  expression  by 
the  law-making  power  that  conduct  in  accordance  with  such  rule 
is  conducive  to  the  public  good  and  therefore  proper,  and  conduct 
contrary  to  such  rule  is  subversive  of  the  public  good  and  there- 
fore improper. 

The  questions  necessarily  arise,  by  what  standards  are  the  law- 
makers to  test  the  propriety  or  impropriety  of  proposed  rules  of 


140  AMERICAN   ELEMENTARY  LAW. 

conduct  and  how  closely  shall  they  adhere  to  such  standards  in 
the  enactment  of  law  ?  Law  is  essentially  practical  and  its  stand- 
ards must  be  practical.  Notwithstanding  this  fact  its  standards 
of  propriety  must  always  conform  in  large  measure  to  moral 
principle.  Laws  are  not  made  for  the  direct  purpose  of  making 
men  moral  but  in  any  enlightened  community  courses  of  conduct 
which  the  law  commends  must  essentially  conform  to  moral  stand- 
ards simply  because  moral  conduct  in  the  great  majority  of  in- 
stances is  conducive  to  the  public  welfare  and  to  the  individual 
good  of  the  persons  composing  the  community. 

These  truths  are  so  manifest  and  so  nearly  universal  in  their 
application  that  it  seems  almost  unnecessary  to  mention  them. 
Still  it  is  not  infrequent,  when  it  is  proposed  to  enact  some 
measure  into  law,  to  hear  the  objection  that  the  conduct  sought 
to  be  secured  thereby  is  moral  and  therefore  outside  the  domain 
of  municipal  law.  This  can  never  be  a  good  objection.  That 
a  measure  though  moral  is  still  impractical  or  would  not  be  con- 
ducive to  the  public  good  is  a  legitimate  argument  against  it,  but 
the  fact  that  the  rule  enjoins  moral  conduct  or  conforms  to  prin- 
ciples of  right  cannot  of  itself  take  the  matter  out  of  the  juris- 
diction of  law. 

A  moment's  consideration  of  the  provisions  of  criminal  law 
will  demonstrate  that  in  almost  evely  instance  conduct  denounced 
as  criminal  is  also  immoral.  This  is  equally  true,  though  per- 
haps not  quite  so  readily  apparent  in  civil  law.  In  almost  every 
instance  the  conduct  required  by  law  of  individuals  when  dealing 
with  their  neighbors  conforms  to  the  requirements  of  morality. 
Neither  the  criminal  nor  the  civil  law  covers  the  whole  field  of 
ethics,  but  each,  so  far  as  it  extends,  in  a  very  large  measure 
conforms  to  and  enjoins  obedience  to  ethical  principles.  It 
must  necessarily  follow  that  the  fact  that  a  proposed  rule  of  con- 
duct is  in  itself  moral  cannot  be  an  objection  to  its  legality  or. 
against  its  being  enacted  into  law. 

CONSIDERATIONS    CONTROLLING    SOVEREIGNTY    IN    ENACTING    LAWS. 

In  political  organizations  in  which  no  class  distinctions  are  rec- 
ognized and  the  sovereign  power  is  vested  in  the  people,  or  a 
large  percentage  of  them,  law  is  developed  public  sentiment,  form- 
ulated and  enforced  through  governmental  agencies.     In  such 


MUNICIPAL.  LAW   AND   ITS   SUBJECT    MATTER.  141 

communities,  the  rules  of  conduct  prescribed  necessarily  reflect 
the  social,  educational  and  moral  conditions  of  the  people.  The 
standards  most  usually  applied  by  a  people  and  their  representa- 
tives in  determining  what  rules  of  conduct  should  be  enforced 
are  moral,  but  these  are  not  the  sole  matters  to  be  considered. 
Questions  of  policy  and  of  practicability  must  be  given  due  weight. 
Hence,  the  rules  of  conduct  prescribed  by  law  usually  embody 
so  much  of  the  people's  conception  of  the  morally  right  in  regard 
to  such  conduct,  as  they  can  practically  enforce  through  the 
agencies  at  their  command.  These  practical  considerations  are 
often  of  very  great  weight.  In  them  may  be  found,  to  a  large 
measure,  an  explanation  of  the  law 's  failure  to  provide  compensa- 
tion for  moral  injuries.  Some  preventive  measures  are 
adopted ;  but,  where  moral  injury  has  actually  been  received,  the 
law  never  undertakes  to  give  damages  in  compensation.  This  is 
not  because  the  law  does  not  recognize  that  man  has  a  moral 
nature  and  that  it  is  worthy  of  protection ;  but  because  it  has  no 
means  by  which  practically  to  determine  the  fact  or  extent  of 
injury,  or  by  which  to  measure  such  injury  in  dollars  and  cents. 
The  same  consideratons  prevail  in  many  other  matters,  and  afford 
an  explanation  of  most,  if  not  all,  of  the  omissions  for  which  the 
law  is  at  times  criticised. 

Rightness  as  a  quality  may,  in  a  general  way,  be  defined  as  pro- 
priety enforced  by  power. 

Propriety  consists  in  conformity  to  established  rule,  and  is  an 
indispensable  element  of  rightness.  Frequently,  we  emphasize 
the  idea  of  conformity  to  standard  to  such  extent  as  practically  to 
exclude  the  second  notion  from  view ;  still,  it  seems  that  the  idea 
of  sanction  or  enforcement  by  power  is  as  really  a  part,  though 
not  so  large  a  part,  as  is  conformity,  in  the  conception  of  pro- 
priety. 

When  we  speak  of  the  morally  right  we  mean  that  which  is 
proper,  judged  by  moral  standards,  and  which  is  enforced  by 
such  sanctions  and  penalties  as  moral  forces  can  control.  So  of 
that  which  is  religiously  right;  this  is  conformity  to  religious 
standards,  resulting  in  religious  approval  and  reward;  its  op- 
posite, non-conformity  to  religious  standards,  subjects  to  religious 
disapprobation  and  penalty.  Social  rightness  is  conformity  to 
social  standards,  and  brings  social  approval ;  social  unrightness  is 


142  AMERICAN   ELEMENTARY  LAW. 

nonconformity  to  social  standards,  and  always  subjects  to  such 
penalties  as  society  has  at  its  command.  So  on  through  the  en- 
tire range  of  conduct,  and  judgment  concerning  it.  Every  time 
we  change  the  standards  of  propriety  and  the  power  by  which 
conformity  is  to  be  enforced,  we  change  the  quality  of  conduct 
which  will  result  in  conformity,  or  Tightness,  or  in  nonconformity, 
or  wrongness.  This  general  doctrine  is  as  true  of  legal  standards 
and  penalties  and  of  legal  rights  and  wrongs,  as  in  any  other 
department  of  life. 

The  question  arises:  Is  there  no  absolute  right  and  wrong,  no 
quality  in  conduct  which  will  unerringly  determine  its  character  ? 

Most  certainly  there  is.  God  lives.  He  is  infinite  perfection 
in  all  His  characteristics  and  attributes.  His  standards  are  per- 
fect, and  conformity  to  them  gives  absolute  right ;  nonconformity 
gives  wrong  or  sin.  We  being  emanations  from  God,  formed 
in  His  image,  endowed  with  intelligence,  capacity  for  appreciat- 
ing the  moral  quality  of  conduct,  and  freedom  of  choice  between 
good  and  evil,  should  conform  our  lives  to  these  absolute  standards 
which  exist  in  the  mind  of  God,  and  are  in  strict  harmony  with 
Him,  His  character  and  government;  and,  if  we  fail  to  do  so,  we 
place  ourselves  out  of  line  with  Him,  and  subject  ourselves  to 
the  penalties  for  such  nonconformity.  In  the  nature  of  things, 
he  who  is  subject  to  law  and  does  not  conform  thereto  must  accept 
the  penalties  of  nonconformity.  The  declaration  of  these  moral 
standards,  the  conditions  of  conformity  thereto,  and  the  penalties 
for  the  violation  thereof,  form  a  large  part  of  Divine  Law. 

Human  Law  expresses  man's  idea  of  propriety,  so  far  as  he  is 
capable  of  enforcing  it  by  the  means  at  his  command.  As  the 
intelligence  and  moral  excellence  of  the  law-giver  advances  and 
his  conception  of  propriety  approaches  nearer  to  the  absolute 
standard  existing  in  the  mind  and  law  of  God,  so  will  human  law 
approach  the  absolute  perfection  of  the  divine. 

We  hear  much  of  the  relation  between  law  and  justice,  some- 
times in  the  form  of  congratulation  on  the  gradual  nearing  of  the 
two,  sometimes  in  the  form  of  lamentation  that  they  are  still  so 
far  apart.  Nothing  human  is  perfect,  but  it  is  certain  that  man's 
conception  of  right  is  growing  better  and  truer  day  by  day,  and 
his  capacity  for  apprehending  and  applying  just  remedies  is  also 


MUNICIPAL  LAW  AND  ITS  SUBJECT   MATTER.  143 

improving,  so  that  each  year  finds  the  law  nearer  than  before  to 
the  absolute  standard  of  right.  He  is  the  true  reformer  who, 
with  patient  toil  and  faithful  service,  brings  first  himself  and 
then  those  about  him  to  a  higher  and  clearer  conception  of  the 
absolute  right  and  to  purer  habits  of  life  and  conduct,  and  thus 
becomes  a  center  of  moral  light  to  those  about  him.  No  man  has 
a  finer  opportunity  in  this  line  than  the  lawyer. 

Legal  Rights. 

"When  certain  conduct  is  approved  by  the  law-making  power  of 
any  government,  and  it  makes  rules  requiring  such  conduct  to  be 
observed  by  those  subject  to  it,  prescribes  penalties  for  the  viola- 
tion of  such  rules,  and  provides  machinery  or  agencies  to  apply 
such  penalties,  such  conduct  is  right  in  that  government.  Per- 
sons failing  to  conform  voluntarily  to  these  rules  are  by  the  sover- 
eign subjected  to  the  prescribed  penalties,  and  are  thus,  in  legal 
contemplation,  made  to  conform.  This  compulsion  to  conformity 
always  consists  in  some  form  of  control  over  the  person  compelled, 
either  making  him  do  or  forbear  to  do  in  some  way.  This  idea  is 
so  essential  in  the  law  that  many  times  compulsion  occupies  a 
very  prominent  place  in  the  legal  conception  of  right  as  a  quality, 
and  many  authors,  when  they  turn  from  the  abstract  to  the  con- 
crete, define  a  legal  right  with  almost  exclusive  reference  to  this 
idea,  and  say  that  a  legal  right  is  ''the  capacity  in  one  or  more 
persons  to  control  by  law  definite  acts  and  forbearances  by  an- 
other or  others."  While  these  authors  are  entitled  to  much  re- 
spect, their  views  can  not  be  accepted  as  controlling  further  than 
they  embody  true  ideas.  The  conception  conveyed  by  the  lan- 
guage quoted  above  does  not  seem  to  be  adequate,  and  in  some 
connections  is  quite  confusing.  To  illustrate:  We  are  told  by 
the  highest  authority,  and  all  recognize  as  true,  that  a  cause  of 
action  consists  of  a  legal  right  in  one  person,  the  violation  of  this 
right  by  another,  and  directly  resulting  injury.  If,  in  this 
formula,  we  limit  the  idea  of  legal  right  to  simple  capacity  to 
control  by  law,  the  result  is  confusing,  if  not  unintelligible.  The 
same  is  true  in  many  other  legitimate  uses  of  the  word  right.  It 
seems,  therefore,  that  the  term  carries  with  it  a  different,  or  at 
least  an  additional,  idea,  embracing  something  vested  in  and  per- 


144  AMERICAN    ELEMENTARY   LAW. 

taining  to  the  person  having  the  right,  with  reference  to  which 
he  may  control  by  law  the  conduct  of  others.  For  these  reasons, 
I  prefer  the  following  definition : 

A  legal  right  is  some  power,  claim,  interest,  or  advantage  which 
one  or  more  persons  enjoy  under  the  protection  of  the  law,  se- 
cured to  him  or  them  by  the  sovereign  by  giving  to  him  or  them 
the  capacity  to  control  by  law  the  conduct  of  others  with  refer- 
ence thereto. 

The  correlative  term  to  legal  right  is  legal  duty.  This  repre- 
sents the  necessity  imposed  by  law  on  one  or  more  persons  to  rec- 
ognize and  respect  and  to  leave  inviolate  some  power,  claim,  in- 
terest or  advantage,  existing  in  another  or  others,  and  consti- 
tuting the  right  to  which  the  duty  is  correlative. 

Whatever  language  may  be  adopted  to  express  the  thought,  the 
conception  of  a  legal  right  involves  the  idea  of  capacity  to  con- 
trol the  conduct  of  others  by  law,  he  or  they  who  have  the  legal 
right  having  the  power  to  control  by  law  the  conduct  of  him  or 
them  owing  the  corresponding  legal  duty,  so  far  as  such  con- 
duct affects  such  right. 

The  sovereign's  recognition  of  a  power,  claim,  interest  or 
advantage  in  one  person,  and  its  undertaking  to  compel  another 
or  others  to  observe  and  respect  the  same,  constitutes  the  legal 
obligation  existing  between  such  persons  with  reference  to  the 
recognized  power,  claim,  interest  or  advantage.  Thus,  if  one 
person  have  a  claim  against  another  which  is  well  founded  in 
morals,  the  latter  would  be  morally  obliged  to  recognize  it.  This 
would  constitute  no  legal  obligation;  if,  however,  the  sovereign 
having  jurisdiction  over  both  persons  should  say:  "This  claim  is 
proper,  and  I  will  enforce  it,"  this  recognition  and  undertaking 
to  enforce  by  the  sovereign  gives  legal  obligation  to  the  claim, 
and  at  once  transforms  it  into  a  legal  right. 

Legal  rights  may  exist  in  the  whole  body  of  the  people  collec- 
tively, or  in  private  persons.  The  mass  of  rules  made  for  the 
protection  of  public  rights  against  individual  wrongs  is  called 
Criminal  Law ;  the  mass  of  rules  made  for  the  protection  of  the 
private  rights  of  individuals  is  called  Civil  Law. 

The  rights  existing  in  the  public  and  protected  by  the  Crim- 
inal Law,  and  subjection  to  punishment  for  violation  thereof,  are 
dependent  upon  the  will  of  the  sovereign,  and  are  in  no  wise 


MUNICIPAL   LAW  AND   ITS   SUBJECT   MATTER.  145 

dependent  upon  the  assent  and  acquiescence,  individually,  of  the 
person  charged  with  the  offense. 

The  private  rights  protected  by  Civil  Law,  many  of  them,  exist 
independent  of  the  assent  of  the  parties  owing  the  correlative 
duties.  These  constitute  the  rights  protected  by  tort,  or  non- 
contract  law.  The  law  recognizes  the  power  of  persons,  under 
certain  restrictions,  to  create  new  rights,  or  modify  or  destro}' 
previously  existing  ones  by  agreement.  Agreements  having  such 
characteristics  that  the  law  will  recognize  and  enforce  them  are 
called  contracts,  and  the  rules  governing  the  formation,  effect,  and 
enforcement  of  such  agreements  are  called  Contract  Law. 
10 


CHAPTER  II. 

MUNICIPAL  LAW  AND  ITS  SUBJECT  MATTER   (CONTD.) 
SUBJECT  MATTER  OP  LAWS. 

The  subject  matter  of  private  laws  are  persons  and  things,  and 
the  conduct  of  persons  with  reference  thereto.  I  should  prefer 
to  limit  it  to  human  conduct,  but  persons  and  things  have  so  long 
been  included  that  it  is  not  desirable  to  omit  them  except  for  suffi- 
cient reasons,  which  do  not  seem  to  exist.  They  are,  therefore, 
retained,  and  the  idea  of  conduct  added. 

persons. 

A  person  is  a  being  capable  of  having  legal  rights  and  owing 
legal  duties. 

Persons  are  of  two  kinds,  natural  and  artificial;  the  first  in- 
cluding all  human  beings,  whether  normal  or  abnormal,  and  the 
second  including  certain  ideal  entities  recognized  by  the  law  as 
existing  separate  and  apart  from  the  actual  persons  composing 
them,  having  such  powers  and  capacities  and  subject  to  such 
restrictions  and  duties  as  are  determined  in  their  creation.  These 
artificial  persons  are  known  as  corporations. 

Natural  persons  are  classified  in  various  ways.  When  viewed 
with  reference  to  their  relation  to  particular  governments,  they 
are  separated  into  citizens  or  subjects,  denizens,  and  aliens ;  with 
reference  to  their  representation  of  sovereignty,  into  public  and 
private ;  with  reference  to  their  capacity  to  act  for  themselves, 
into  those  sui  juris  and  those  non-sui  juris.  These  classes  are 
again  subject  to  subdivision. 

Citizens. 

A  citizen  is  one  of  the  sovereign  people.  (19  How.,  404.)  A 
constituent  member  of  the  State.    (92  U.  S.,  342 ;  21  Wall.,  162.) 

All  persons,  except  Indians,  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  States  in  which  they  reside.     (U.  S. 


MUNICIPAL  LAW   AND   ITS  SUBJECT   MATTER.  147 

Const.,  fourteenth  amendment.)  The  only  difference  between  the 
rights  and  duties  of  native  and  naturalized  citizens  is  that  the 
latter  can  not  become  President  or  Vice-President  of  the  United 
States. 

Birth  may  be  actually  or  constructively  within  the  United 
States.  The  first  includes  all  actual  births  within  the  territory 
of  the  United  States,  except  of  children  of  parents  resident  here 
in  the  diplomatic  service  of  some  foreign  government,  or  who 
are  alien  enemies  within  the  territory.  (169  U.  S.  649.)  The  sec- 
ond includes  all  births  in  foreign  countries,  or  on  the  seas,  when 
the  parents  are  citizens  and  engaged  in  the  diplomatic  service 
of  the  United  States,  and  also  when  both  parents  are  citizens  of 
the  United  States  but  temporarily  absent.  (5  Blatch.  18;  50 
Fed.  Rep.,  310.) 

Naturalization. — The  Federal  Constitution  puts  the  subject  of 
naturalization  in  the  hands  of  Congress  (Const,,  Art.  I,  Sec.  3c-5), 
and  Congress  has  passed  general  laws  on  the  subject,  under  which 
the  State  governments  are  authorized  to  act.  (Act  April  14, 
1802.)  This  power  of  Congress  to  naturalize,  so  as  to  make 
citizens  of  the  United  States,  is  exclusive,  and  can  not  be  exercised 
by  the  States.  (2  Story  on  Const.,  Sec.  1104;  7  How.,  556;  19 
How.,  393;  143  U.  S.,  160.)  The  States  may,  however,  confer 
such  rights  upon  persons  resident  within  their  borders  as  they 
see  fit,  even  though  they  be  such  as  are  usually  enjoyed  only  by 
citizens.  (10  How.,  393;  143  U.  S.,  160;  4  Dill.,  425;  5  C.  C.  A. 
[T.  C.  A.],  31  and  note.)  The  State  can  thus  confer  the  right 
to  vote,  and  as  voters  for  the  Federal  representatives  and  presi- 
dential electors  are  the  same  as  qualified  voters  for  house  of  rep- 
resentatives in  the  particular  State,  it  follows  that  the  State  can 
practically  withhold  the  right  of  suffrage  in  Federal  elections 
from  citizens  of  the  United  States  and  confer  it  upon  persons  not 
such  citizens.     (See  former  authorities.) 

Who  May  Be  Naturalized. — Any  alien  friend  who  is  a  white 
person  or  of  African  descent  may  be.  But  Chinese,  Sandwich 
Islanders,  Japanese,  and  Burmese  can  not.  But  it  has  been  held 
that  a  Mexican  may  be. 

The  children  of  the  above  classes,  born  in  the  United  States,  and 
whose  parents  are  not  in  the  diplomatic  service,  are  citizens 
(10  Fed.,  456.) 


148  AMJ5RICAN  BLBMSNTABY  LAW. 

Process  of  Naturalization. — There  are  two  distinct  steps  in 
naturalization:  (1)  The  declaration  of  intention.  (2)  The  ac- 
tual adoption  into  citizenship.  The  first  is  a  sworn  statement 
by  the  alien,  before  some  court  of  record  or  its  clerk,  that  he 
desires  to  become  a  citizen  of  the  United  States,  and  renounces  all 
foreign  allegiance.  This  must  precede  the  final  action  by  at  least 
two  years.  The  final  action  is  taken  by  appearing  before  a  court 
of  record,  in  open  court,  and  declaring  on  oath  that  the  person 
will  support  the  Constitution  of  the  United  States,  and  renounces 
all  foreign  allegiance.  He  must  also  prove  that  he  has  made  the 
former  declaration  in 'due  form,  that  he  has  resided  in  the  United 
States  for  five  years  and  in  the  State  or  territory  in  which  the 
court  is  held  for  three  years,  that  he  is  well  disposed  to  the 
United  States,  and  has  conducted  himself  properly  during  his 
residence  here. 

Naturalization  confers  citizenship,  but  not  necessarily  all  poli- 
tical privileges.  Citizenship  and  allegiance  are  correlative  terms, 
and  the  citizen  is  entitled  to  the  full  protection  of  the  law  in 
all  his  rights,  personal  and  property,  but  he  is  not  necessarily 
entitled  to  all  political  privileges,  or  rights,  as  they  are  frequently 
termed.  Political  privileges  or  rights  are  enjoyable  by  such  per- 
sons only  as  the  sovereign  sees  fit  to  designate.  Many  citizens 
have  limited  political  rights,  as  women  and  infants,  who  are  not 
permitted  to  vote,  persons  who  are  deaf  or  blind,  or  who  can  not 
read  or  write,  who  are  ordinarily  relieved  from  jury  service,  per- 
sons not  having  legal  qualifications,  and  hence  debarred  from 
holding  office,  etc.  The  privilege  of  voting  can  be  taken  away 
from  classes  once  enjoying  it,  provided  the  exclusion  be  not 
based  on  race,  color,  or  servitude.  The  provisions  of  the  Federal 
Constitution,  as  to  rights  of  citizens,  have  been  already  given. 

Subjects. 

This  term  applies,  or  is  sometimes  used  to  apply,  to  the  same 
persons  as  citizen,  but  this  is  not  accurate.  Its  proper  meaning 
is  confined  to  monarchical  forms  of  government,  and  indicates 
one  who  owes  permanent  allegiance  to  a  monarch. 

Denizens,  in  English  Law,  are  persons  not  citizens  and  not  nat- 
uralized, but  who  have  been  granted  some  special  privileges  by 
the  King.     By  analogy  the  term  is  here  applied  to  persons  not 


MUNICIPAL  LAW  AND   ITS  SUBJECT   MATTER.  149 

citizens,  but  residents  who,  by  treaty  or  by  some  legislation,  en- 
joy some  privileges  beyond  those  enjoyed  of  common  right  by  all 
residents,  and  who  owe  a  qualified  allegiance  on  that  account. 
The  condition  is  anomalous  and  infrequent,  and  the  status  of  the 
person  in  each  instance  depends  on  the  treaty  or  statute  out  of 
which  the  relation  grows.     (Andrews'  Amer.  Law,  3.) 

Aliens  are  citizens  or  subjects  of  a  foreign  nation  or  State; 
that  is,  persons  born  out  of  the  jurisdiction  of  the  United  States, 
and  who  have  not  been  naturalized. 

An  alien  woman  who  marries  a  citizen  becomes  a  citizen,  but 
the  converse  does  not  hold  good,  and  a  citizen  woman  who  marries 
an  alien  does  not  thereby  lose  her  citizenship.    (56  Fed.,  536.) 

Aliens  have  such  rights  and  privileges  in  a  country  as  its  laws 
allow  them.    (149  U.  S.,  698 ;  12  Wall.,  457 ;  153  U.  S.,  458.) 

The  policy  of  the  United  States  has  usually  been  liberal  in  its 
dealing  with  aliens,  and  they  ordinarily  enjoy  large  privileges 
here.  Their  purely  personal  rights  and  rights  in  and  to  personal 
property  are  almost,  if  not  entirely,  identical  with  the  rights  of 
citizens  in  those  regards.  Their  rights  as  to  real  property  are 
more  limited,  and  are  usually  defined  by  statute.  (For  Texas 
statutes  see  Kev.  Stats.,  1895,  Arts.  9-15.) 

The  above  applies  to  alien  friends.  Alien  enemies  are  the 
subjects  of  States  at  war  with  the  United  States.  Formerly  they 
could  hardly  be  said  to  have  legal  rights.  The  tendency  of 
modern  civilization  is  to  ameliorate  this  condition. 

Persons  Sui  Juris,  or  Normal  Persons. 

Persons  who  possess  normal  intellects  and  wills,  and  who  are 
not  subjected  to  influence  supposed  by  law  to  be  controlling,  are 
called  sui  juris.  Persons  in  this  normal  condition,  in  goveru 
ments  such  as  ours,  are  the  real  sovereigns  and  law-makers.  The 
governments  are  organized,  maintained,  and  operated  by  them; 
the  law  is  the  result  of  their  judgment,  and  embodies  their  au- 
thoritative will.  Each  is  subject  to  it,  and  each  has  a  voice  in 
its  making,  and  one  of  the  chief  guarantees  of  justice  and  modera- 
tion is  found  in  the  fact  that  they  who  make  the  laws  are  also 
bound  to  obey  them.  As  the  rules  for  regulating  the  conduct  of 
all  persons  are  made  and  enforced  by  these  normal  individuals, 
it  follows  that  the  law  practically  embodies  their  standards  of 


150  AMERICAN   ELEMENTARY   LAW. 

right  and  their  conceptions  of  propriety,  modified,  of  course,  by 
matters  of  practicability,  as  before  indicated.  It  is,  therefore, 
essentially  true  that  the  law's  standard  by  which  to  measure 
conduct  is  the  average  man. 

Not  only  are  the  laws  made  by  him,  but  primarily  they  are 
made  for  him,  and  the  rules  of  conduct  prescribed  are  such  as 
he  should  observe,  and  the  protection  afforded  it  such  as  he  should 
have. 

Persons  Non-Sui  Juris,  or  Abnormal  Persons. 

The  class  of  persons  designated  as  non-sui  juris  includes  those 
who  are  abnormal,  or  rather  below  normal  in  intellect  or  will,  and 
those  who  are  subjected  to  influences  by  others  which  are  sup- 
posed by  law  to  be  controlling.  Such  persons,  while  in  this  con- 
dition, have  no  direct  part  in  the  formation  or  operation  of  the 
government,  nor  any  voice  in  the  making  of  the  laws,  though  they 
frequently  share  in  its  burdens  and  always  in  its  benefits.  The 
rules  regulating  their  rights  and  duties  vary  from  those  provided 
for  the  normal  person  as  their  special  needs  may  require.  These 
variations  usually  take  the  form  of  lessened  capacity  to  divest 
themselves  of  rights  or  to  assume  obligations.  The  extent  to 
which  these  deviations  go,  and  the  circumstances  and  length  of 
time  under  which  they  exist  and  the  methods  of  their  termination 
vary  with  the  different  facts  on  which  their  disabilities  are  based. 

The  classes  of  persons  usually  regarded  non-sui  juris  are  per- 
sons mentally  unsound,  persons  under  duress,  persons  in  a  state 
of  intoxication,  infants  and  married  women. 

Considering  these  in  their  order,  we  have: 

Insane  Persons. 

1.  The  lack  of  mental  capacity  to  enable  one  to  appreciate  in- 
telligently the  nature  of  conduct  and  the  natural  consequences 
to  result  therefrom,  or  of  sufficient  will  power  to  enable  him  to 
determine  his  course  with  regard  thereto,  of  necessity  removes 
the  person  from  among  the  normal  and  constitutes  incapacity 
both  in  fact  and  in  law.  So  it  is  everywhere  held  that  such  a 
person  shall  be  protected  from  the  consequences  of  his  voluntary 
acts,  so  far  as  they  result  in  injury  to  the  public  or  in  attempted 
voluntary  assumption  of  new  legal  relations;  that  is,  from  lia- 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  151 

bility  for  crime  and  improvident  contracts.  But  such  an  one  is 
still  capable  of  doing  actual  injury  to  another,  and  in  such  case 
the  loss  must  be  borne  by  one  or  the  other,  the  abnormal  agent 
or  the  innocent  sufferer.  It  is  held  as  a  very  general  rule  that 
it  is  better  for  it  to  fall  on  the  agent  than  the  victim.  If,  how- 
ever, the  wrong  be  such  an  one  that  an  affirmative  evil  intent  is 
an  essential  element,  a  person  non  compos  mentis  being  incapable 
of  entertaining  such  an  intent,  can  not  commit  the  wrong. 

We  therefore  find  these  rules  to  be  of  practically  universal 
application. 

(1)  An  insane  person,  one  mentally  incapable  of  understand- 
ing the  nature  and  consequences  of  certain  acts  or  omissions  or 
of  controlling  himself  with  regard  thereto,  is  not  responsible, 
criminally,  therefor. 

(2)  A  person  in  this  condition  can  not,  by  agreement,  bind 
himself  to  do  or  forbear  any  act  or  omission  so  as  to  create  a 
valid  contract  or  obligation  against  himself,  except  it  be  for 
necessaries.  If,  however,  the  other  party  to  the  agreement  acted 
in  ignorance  of  this  abnormal  condition  and  without  legal  notice 
thereof  and  has  changed  his  condition  in  dependence  on  the  con- 
tract, the  right  to  be  relieved  from  the  agreement  is  coupled  with 
the  requirement  that  the  insane  person  shall  put  the  other  person 
in  statu  quo.  Such  an  one  can  not  represent  himself  before  the 
courts,  but  must  appear  by  guardian,  regular  or  special. 

(3)  Such  a  person  is  responsible  in  compensatory  damages  for 
torts  committed  by  him  which  do  not  include  an  element  of  intent 
to  do  evil.  If  the  tort  be  one  to  which  a  specific  evil  intent  is 
necessary,  he  can  not  commit  it,  and  is  not  responsible  for  it. 
He  can  not  be  held  responsible  for  punitive  or  exemplary  dam- 
ages. 

If  the  condition  is  temporary,  and  not  dangerous  to  others,  the 
negative  protection  afforded  by  the  above  rules  of  non-liability  is 
deemed  sufficient.  If  it  be  continuing  but  not  violent,  in  addition 
to  the  non-liabilty,  a  guardian  should  be  appointed  to  conduct  the 
affairs  of  the  insane  person,  under  the  direction  of  the  proper 
court.  If  the  condition  be  violent,  other  considerations  enter 
into  the  matter  and  the  safety  of  the  public,  as  well  as  of  the 
individual,  is  to  be  considered,  and  if  necessary  he  may  be 
restrained  of  his  liberty. 


152  AMERICAN   ELEMENTARY   LAW. 

Persons  under  Duress. 

2.  Duress  is  another  partial  incapacity.  It  consists  in  such  a 
state  of  facts  as  amounts  to  coercion,  overcoming  the  will  of  the 
party  and  destroying,  for  the  time  being,  his  free  agency.  In 
such  case  the  person  apprehends  the  nature  and  consequences  of 
his  act,  but  is  not  free  to  choose  between  performing  it  and  leaving 
it  alone.  The  circumstances  must  be  such  as  to  be  calculated  to 
overcome  the  will  of  the  particular  person  and  must,  in  fact, 
have  had  that  effect.  When  this  is  shown,  it  will  avoid  a  con- 
tract into  which  the  person  has  been  forced;  but,  with  the  ex- 
ception of  coercion  exercised  by  the  husband  over  the  wife,  it 
is  not  a  defense  to  an  action  for  tort.  In  some  instances,  it  ex- 
cuses an  act  otherwise  criminal,  and  in  others  it  does  not.  For 
rules  governing  this  subject,  reference  must  be  had  to  works  on 
Criminal  Law. 

Drunken  Persons. 

3.  When  drunkenness  has  been  so  protracted  and  severe  as  to 
result  in  delirium  tremens,  it  is  recognized  as  a  species  of  insanity, 
and  is  governed  by  the  general  rules  given  above.  When  it  is 
temporary,  it  relieves  from  liability  on  agreements  entered  into 
under  its  influence,  provided  the  party  act  promptly  and  justly, 
in  disaffirming  when  he  becomes  sober.  Drunkenness  does  not 
relieve  from  liability  for  tort  or  crime,  except  when  some  intent 
of  which  the  person  is  incapable  is  an  essential  element  of  the 
wrong.  If  a  person  desiring  to  do  a  wrong,  whether  a  tort  or 
a  crime,  makes  himself  drunk  in  order  to  do  so,  his  intoxication 
will  be  no  defense,  nor  even  mitigation,  but  will  rather  be  an 
aggravation. 

Married  Women  and  Infants. 

The  disabilities  of  coverture  and  infancy  will  be  considered  in 
a  subsequent  portion  of  our  work. 

THINGS. 

A  thing  is  any  existence  not  a  person,  natural  or  artificial. 
They  are  divided  into  corporeal  and  incorporeal.  Corporeal 
things  are  those  which  are  discernible  by  the  physical  senses, 
usually  having  tangible  form  and  substance.  Incorporeal  things 
are  those  existing  only  in  thought  or  idea.  They  may  be  quite 
as  real,  practical,  and  important  as  things  tangible,  though  they 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  153 

can  not  be  discovered  by  the  physical  senses.  Probably  the  most 
familiar  illustration  of  an  incorporeal  thing  is  a  debt.  One  man 
loans  to  another  a  sum  of  money  which  the  borrower  promises  to 
repay  at  a  certain  time.  The  borrower  obtains  the  money,  the 
lender  obtains  the  enforcible  promise  of  repayment,  or  the  debt 
from  the  borrower  to  him.  In  legal  contemplation  this  debt  is 
as  real  as  the  money  for  the  repayment  of  which  it  was  incurred. 
Another  illustration  is  found  in  an  easement  which  one  man  has 
upon  the  property  of  another,  say  a  right  of  way  across  his  land. 
The  right  of  way  is  not  the  land,  but  a  simple  right  of  user  in 
a  designated  manner  for  designated  purposes;  yet,  this  right  of 
user  is  real,  valuable  and  protected  by  law. 

The  law  is  concerned  in  and  deals  with  things  only  as  they  are 
connected  with  persons,  and  are  the  subjects  of  rights  or  bases  of 
liability  as  between  persons. 

The  relationship  between  a  person  and  a  thing  by  which  the 
former  is  entitled  to  full  legal  dominion  over  the  latter  is  called 
ownership.  Ownership  may  be  resolved  into  several  elements, 
each  of  which  may  be  the  subject  of  legal  right  These  elements 
are  possession,  use,  profit,  modification,  and  disposition.  When 
the  relationship  between  a  given  individual  and  a  given  thing 
embraces  all  these  elements,  he  is  a  general  owner.  When  the 
relationship  between  the  person  and  the  thing  embraces  some 
one  or  more,  but  not  all,  of  these  elements,  or  all  of  them  for  a 
limited  time  or  to  a  limited  extent,  the  relationship  is  called 
limited  or  special  ownership. 

When  the  facts  are  such  that  the  law  recognizes  and  undertakes 
to  enforce  and  protect  the  relationship  between  the  individual 
and  the  thing,  the  person  has  a  legal  right  in  and  to  the  thing 
to  the  extent  of  such  recognition  and  protection. 

The  rules  of  law  regulating  these  relationships  between  persons 
and  things  constitute  the  law  of  property,  and  are  essential  to 
the  well  being  and  the  safety  of  every  State.  The  different  inter- 
ests that  persons  have  in  things,  when  recognized  and  protected 
by  law,  are  called  estates,  and  the  facts  and  instruments  by 
which  these  estates  are  proven  are  called  titles. 

The  most  important  classification  of  things,  legally  speaking,  is 
into  real  and  personal  property.  This  classification  takes  into 
account  both  the  nature  of  the  thing  and  the  quality  of  the  estate 


154  AMERICAN   ELEMENTARY  LAW. 

held  in  it.  Eeal  property  includes  all  immovable  and  enduring 
things,  whether  corporeal  or  incorporeal,  held  under  an  estate 
that  is  inheritable,  indeterminate  in  its  duration,  and  lasting  as 
long  as  one  life.  Personal  property  includes  all  property  not  real, 
as  defmed  above. 

To  properly  regulate  the  conduct  and  rights  of  persons  with 
reference  to  things  is  one  of  the  most  important  duties  of  gov- 
ernment. The  law  governing  these  matters  will  be  given  at  more 
length  in  subsequent  chapters  on  property. 

CONDUCT. 

The  real  subject  matter  of  private  municipal  law  is  human 
conduct.  As  legal  rights  involve  and  their  enjoyment  is  secured 
by  control  over  the  conduct  of  others,  and  as  legal  duty  involves 
subjection  of  conduct  to  control,  it  seems  to  follow  logically  that 
the  only  way  in  which  the  law  can  deal  with  persons  or  things 
is  by  prescribing  and  enforcing  rules  of  conduct  for  or  with 
reference  thereto.  This  is  correct  practically  as  well  as  theoret- 
ically. It  is,  therefore,  essential  to  have  accurate  ideas  as  to 
what  is  conduct;  what  its  characteristics  must  be  for  the  law  to 
take  cognizance  of  it;  for  whose  conduct  each  person  is  respon- 
sible, and  to  what  consequences  of  conduct  legal  liability  attaches. 

Conduct  is  both  affirmative  and  negative,  and  the  law  takes 
cognizance  of  both. 

Affirmative  conduct,  includes  all  human  activity  that  in  any 
way  manifests  itself  outside  of  the  actor,  that  is,  everything  said 
or  done  by  any  human  being.  No  particular  form  of  manifesta- 
tion is  necessary;  it  may  be  by  speech,  by  look,  or  by  any  other 
outward  sign  or  action.  It  does  not  include  unmanifested  thought 
or  feeling. 

Negative  conduct,  includes  all  failures  to  act  when  action  is 
a  duty.  Simple  failure  to  act  when  there  is  no  duty  requiring 
action  is  not  conduct,  but  whenever  a  legal  duty  to  act  exists 
failure  to  meet  this  duty  is  just  as  much  a  manifestation  of  the 
person,  his  disposition  and  character  as  affirmative  action  could  be. 

The  law  takes  cognizance  of,  and  undertakes  to  regulate  and 
control  both  these  affirmative  activities  and  wrongful  failures  to 
net,  so  far  as  in  the  judgment  of  the  law-maker  they  appreciably 
violate  the  just  rights  of  others  and  are  of  such  kind  that  they 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  155 

can  be  dealt  with  practically  through  governmental  agencies. 
If  conduct,  affirmative  or  negative,  does  not  violate  the  just  rights 
of  others  or  is  of  such  kind  that  it  or  its  consequences  cannot 
practically  be  inquired  into  and  justly  weighed  and  determined, 
the  law  does  not  undertake  to  control  it. 

The  law  does,  however,  as  just  said,  take  cognizance  of  all  out- 
ward conduct,  affirmative  or  negative,  which,  in  the  judgment 
of  the  sovereign,  needs  and  is  practically  subject  to  control.  It 
declares  its  will  concerning  such  conduct  in  authoritative  rules, 
to  be  observed  by  all  persons  to  whom  they  are  addressed,  and 
which  are  sanctioned  by  appropriate  rewards  for  conformity  or 
penalties  for  nonconformity.  Conduct  approved  by  the  sovereign 
is  lawful ;  conduct  disapproved  by  the  sovereign  is  unlawful,  and 
subject  to  penalty. 

To  subject  one  to  legal  penalty,  his  conduct  must  be  unlawful. 
As  we  have  seen,  on  the  one  hand,  that  all  rules  of  law  result  in 
the  establishment  of  legal  rights  and  duties  between  either  the 
public  and  individuals  or  between  or  among  individuals  as  such, 
and  on  the  other  that  no  legal  right  or  duty  can  exist  except  by 
the  force  of  some  rule  of  law,  it  therefore  follows  that  every 
unlawful  act  or  omission  must  violate  some  legal  right  and  its 
correlative  legal  duty,  and  no  lawful  act  can  have  such  effect. 

It  is  said  by  writers  of  high  authority  that  one  may  break  the 
law.  become  legally  a  wrong-doer,  in  three  ways: 
By  doing  an  unlawful  act. 
By  doing  a  lawful  act  in  an  unlawful  way. 
By  failure  to  do  that  which  is  a  legal  duty. 
The  first  of  these  corresponds  to  our  division  of  affirmative 
wrong  conduct,  and  the  third  to  negative  wrong  conduct.     I  have 
been  unable  to  find  any  appropriate  place  for  the  second  sub- 
division, and  its  introduction  seems  to  lead  to  confusion.     It  is 
used  to  include  those  instances  of  wrong  which  consist  of  sonic 
one  or  more  affirmative  unlawful  acts,  committed  in  the  prosecu- 
tion of  some  enterprise  in  itself  lawful,  as  an  assault  by  a  con- 
ductor upon  a  passenger  on  his  train.     Here  the  operation  of 
the  train,  the  general  enterprise,  is  lawful ;  but  the  particular 
manner  of  doing  it  in  the  supposed  case,  viz. :  assaulting  the 
passenger,  is  unlawful.     It  seems  all  such  cases  are  embraced 
strictly  in  the  first  head,  affirmative  wrongdoing.     It  is  not  the 


156  AMERICAN   ELEMENTARY   LAWU 

lawful  enterprise  of  running  the  train  that  constitutes  the  legal 
wrong,  but  the  affirmative  act  of  assaulting  the  passenger.  This 
is  in  itself  a  distinct  and  independent  violation  of  the  law,  and 
is  not,  it  seems,  aptly  described  as  an  unlawful  way  of  doing  a 
lawful  act.  We  will  therefore  look  more  directly  to  the  par- 
ticular conduct,  and  include  all  legal  wrongs  under  the  two 
heads ;  affirmative  acts  violative  of  legal  rights,  and  negative  con- 
duct in  disregard  of  legal  duty. 

Affirmative  Wrong-doing. 

There  are  so  many  and  such  widely  differing  methods  of  doing 
wrong  affirmatively  that  it  is  not  practicable  either  to  deal  with 
them  all  in  the  same  way,  or  even  to  enumerate  and  classify  them 
with  any  advantage  at  this  stage  of  our  study.  The  law  deals 
with  each  in  the  manner  that  is  deemed  most  reasonable  and 
effective,  seeking  to  establish  rules  of  conduct  which  shall  at  once 
best  subserve  the  public  good  and  be  most  just  to  individuals, 
making  its  rules  general,  applying  to  all  persons  alike,  and  pro- 
portioning the  penalty  for  wrong-doing  to  the  nature  of  the 
wrong.  In  many  instances  the  condition  of  the  wrong-doer,  his 
intent  and  motive,  are  taken  largely  into  account.  In  public  or 
criminal  law  these  considerations  many  times  are  controlling;  in 
civil  law  they  have  greater  or  less  weight  according  to  the  cir- 
cumstances of  the  case.  These  matters  have  been  somewhat 
considered,  and  will  be  taken  up  in  subsequent  chapters. 

Negative  Wrong-doing. 

Every  affirmative  violation  of  a  right  involves  a  failure  to  dis- 
charge the  correlative  duty,  but  usually  the  law  deals  with  these 
in  their  positive  aspect  of  affirmative  wrong,  and  they  fall  under 
the  head  treated  in  the  preceding  section.  It  is  with  omissions, 
failures  to  do  what  should  have  been  done,  that  we  are  now  deal- 
ing. These  are  of  fewer  kinds  than  affirmative  wrongs,  and  the 
strong  tendency  is  to  group  them  under  the  general  head  of 
negligence.  All,  of  course,  can  not  be  forced  into  this  head,  and 
those  which  can  not  be  are  dealt  with  specifically,  under  appro- 
priate designation.  But  after  all  these  are  excluded,  the  wrongs 
still  remaining  under  the  general  term  negligence  are  so  numerous 
and  their  underlying  doctrines  are  so  important  that  they  require 
special  attention 


CHAPTER  IIL 

MUNICIPAL  LAW  AND  ITS  SUBJECT  MATTER  (CONTD.). 
MENTAL    CONDITION   AND    ATTITUDE,    AS   AFFECTING    CONDUCT. 

We  have  already  considered  this  subject  briefly  in  several  con- 
nections, but  some  further  treatment  of  some  phases  of  it  seem 
desirable  here. 

Human  conduct  is  complex,  consisting  of  external  acts,  affirma- 
tive or  negative,  and  mental  condition  and  attitude.  Both  in 
ethics  and  in  law,  some  of  the  most  difficult  questions  which  arise 
are  involved  in  the  true  determination  of  the  quality  of  conduct. 
In  a  general  way,  the  standards  employed  in  each  are  the  same, 
though,  for  practical  reasons,  the  law  can  not  cover  the  full 
ground  occupied  by  ethics.  One  difference  is  readily  apparent: 
Ethics  goes  to  the  very  root  of  the  matter,  and  deals  with  mental 
conditions,  desires,  motives,  while  they  are  still  in  the  mind  and 
heart  of  the  individual;  while  law  can  not  notice  or  deal  with 
these  until  they  are  in  some  way  manifested.  Something  preju- 
dicial to  the  rights  of  the  public,  or  of  one  ,or  more  individuals, 
must  be  done  manifesting  this  mental  condition  before  the  law 
can  take  cognizance  of  it.  The  whole  purpose  need  not  be  fully 
accomplished  to  bring  it  within  the  law's  jurisdiction.  Any  ex- 
ternal manifestation  of  the  inward  state  sufficient  to  indicate 
clearly  its  existence  and  nature  is  sufficient;  but  something  of 
this  sort  must  appear.  We  may,  therefore,  dismiss  unmanifested 
design  and  motive  from  consideration. 

Exceedingly  difficult  questions  still  remain  with  reference  to 
the  effect  of  mental  capacity  and  of  design  and  motive  on  conduct. 
Shall  conduct,  unaccompanied  by  motive  or  design,  as  the  action 
of  an  insane  person  or  pure  accident,  lead  to  legal  responsibility  ? 
Shall  all  action  prompted  by  evil  motive  and  which  results  in 
injury  to  another  be  punished?  Shall  all  action  prompted  by 
proper  motive  go  unpunished,  no  matter  how  harmful  to  others? 

When  each  of  the  foregoing  questions  has  been  answered,  shall 
the  answer  be  of  universal  application,  enforced  inexorably,  under 


158  AMERICAN   ELEMENTARY   LAW. 

all  conditions,  or  shall  it  be  only  a  rule  of  general  application, 
admitting  of  exceptions  ?  And  if  so,  in  what  shall  the  exceptions 
consist,  and  when  shall  they  be  recognized?  Again,  if  difference 
in  mental  capacity  shall  be  taken  into  account,  in  what  shall  these 
differences  consist,  and  how  and  by  what  standards  shall  they  be 
determined  ?  In  short,  in  determining  the  law 's  recognition  of  and 
control  over  outward  conduct  and  its  consequences,  how  far  shall 
the  presence  or  absence  of  mental  capacity,  or  of  intent  to  do  the 
act,  and  accomplish  the  result,  and  how  far  shall  the  motive  in- 
ducing such  intent  be  regarded?  No  legal  questions  are  more 
difficult  to  answer,  whether  the  attempt  be  made  theoretically  or 
practically. 

Deducing  our  answers  from  the  body  of  the  law,  we  find  that 
no  statement  of  universal  application  can  be  made,  and  to  approx- 
imate an  intelligible  reply,  the  questions  must  be  subdivided,  and 
looked  at  from  at  least  three  points  of  view:  (1)  From  the  point 
of  view  of  criminal  law;  (2)  of  tort  law ;  and  (3)  of  contract  law. 
Taking  these  up  in  their  order  and  approximating,  we  find  the 
result  to  be  as  follows: 

In  Criminal  Law. — In  determining  the  quality  of  conduct,  in 
criminal  law,  mental  capacity,  the  purpose  to  do,  and  the  motive 
with  which  a  thing  is  done  or  foreborne  are  almost  universally 
considered,  and  made  conclusive;  that  is,  mental  capacity  and 
guilty  knowledge  or  evil  intent  are  essential  elements  in  almost 
all  crime.  There  are  a  few  minor  police  regulations  in  which 
this  is  not  true.  To  illustrate  the  place  of  motive  and  intent, 
in  criminal  law,  let  us  take  homicide.  Taking  human  life  is  not 
necessarily  criminal.  The  quality  of  the  act  depends  upon  the 
mental  capacity  of  the  slayer  and  the  prompting  motive  and  the 
accompanying  intent.  If  the  person  committing  the  homicide  is 
insane,  it  is  no  offense.  If  it  be  by  an  officer  in  obedience  to  the 
judgment  by  a  court  of  competent  authority,  after  due  and  legal 
trial,  it  becomes  a  legal  duty.  If  it  be  in  the  necessary  defense 
of  one 's  life,  it  is  justifiable.  If  it  result  from  inevitable  accident, 
it  is  excusable.  If  it  be  from  slightly  culpable  negligence,  it  is 
a  misdemeanor.  If  upon  implied  malice,  it  is  murder  in  the 
second  degree.  If  it  be  upon  express  malice  aforethought,  it  is 
murder  in  the  first  degree.  In  all  these  cases,  the  physical  fact 
of  taking  life  is  the  same,  but  the  legal  act,  by  absence  of  mental 


MUNICIPAL   LAW   AND   ITS   SUBJECT    MATTER.  159 

capacity,  or  modified  by  motive  and  intent,  ranges  from  legal  duty 
to  one  of  the  most  atrocious  crimes.  The  same  thing  is  true  with 
reference  to  dealings  with  property.  If  one  person  takes  prop- 
erty belonging  to  another,  under  an  honest  but  mistaken  claim  of 
right,  the  act  would  not  be  criminal;  but  the  same  physical  act, 
accompanied  by  a  fraudulent  design  to  appropriate  to  one's  use 
the  property  of  another,  thus  depriving  the  owner  of  it,  would 
be  theft.  So,  to  pass  a  forged  instrument  would  not  be  a  crime, 
while  to  knowingly  do  so  is  a  felony.  So,  as  stated  above,  we  may 
conclude  that  the  mental  attitude  of  the  actor  is  an  important  and 
controlling  consideration  in  criminal  law. 

In  Tort  Law. — The  rules  constituting  the  law  of  torts  are  estab- 
lished by  the  sovereign  for  the  protection  of  the  private  rights 
of  individuals.  The  validity  of  these  rules  and  the  legal  rights 
and  duties  resulting  from  them  do  not  depend  upon  the  assent  of 
the  parties.  The  sovereign  says,  through  its  regular  agencies, 
that  certain  rights  are  just,  and  entitled  to  legal  protection,  and 
that  all  other  persons  must  recognize  them,  and  leave  them  in- 
violate. This  duty  of  noninterference  is  imposed  upon  the  per- 
sons owing  it  by  the  will  of  the  sovereign,  and  is  not  assumed  by 
the  assent  or  conduct  of  those  from  whom  it  is  due.  It  is  ap- 
parent, if  the  assent  of  the  party  obliged  is  not  essential  to  the 
obligation,  that  no  question  of  his  mental  capacity  or  incapacity 
can  enter  into  the  existence  or  nonexistence  of  the  duty.  It  is 
a  rule  of  almost,  if  not  universal  application,  that  if  a  duty  exists 
and  is  not  discharged,  or  is  affirmatively  violated,  the  motive  of 
the  person  disregarding  or  disobeying  the  duty  is  not  to  be  con- 
sidered in  determining  his  liability  to  give  just  compensation  for 
loss  resulting  from  the  breach.  If  one  person  owns  property,  and 
another  destroys  it,  the  loss  in  value  must  be  borne  by  one  or 
the  other,  or  be  divided  between  the  two.  The  extent  of  the  loss 
is  neither  increased  nor  lessened  because  the  party  occasioning 
it  was  insane,  or  acted  designedly  or  inadvertently.  The  almost 
universal  rule  of  tort  law  is  that  he  who,  by  wrongful  conduct, 
directly  occasions  injury  to  another  must  make  the  loss  good,  with- 
out reference  to  mental  condition,  or  to  design  or  motive.  This 
is  not  universally  true;  for,  in  a  few  exceptional  cases,  whether 
or  not  an  act  or  omission  is  to  be  regarded  as  a  tort  depends 
^pon  whether  it  is  prompted  or  accompanied  by  an  evil  motive. 


160  AMERICAN  ELEMENTABY  LAW. 

In  such  cases  absence  of  mental  capacity  or  of  evil  motive  prevents 
the  conduct  from  being  unlawful,  and,  of  course,  all  legal  liability 
therefor.  These  cases  seem  always  to  be  those  in  which  the  act 
or  omission  would,  under  general  principles,  be  unlawful,  but  in 
which,  for  some  reason  of  public  policy  it  is  licensed  or  permitted 
to  go  unpunished  if  unaccompanied  by  evil  motives.  In  such 
cases,  the  license  or  permission  is  limited  to  those  instances  in 
which  the  act  or  omission  is  strictly  inadvertent,  or  accompanied 
with  and  prompted  by  proper  motives,  and  is  not  extended  to 
those  instances  in  which  evil  motives  exist.  So  as  to  these,  that 
is,  cases  prompted  by  evil  motives,  the  evil  motive  destroys  the 
law 's  license,  and  they  are  left  on  the  original  basis  of  unlawful- 
ness and  the  consequent  liability. 

To  illustrate :  The  general  rule  of  law  is  that  every  one  is 
entitled  to  complete  immunity  of  his  body  from  all  contact  what- 
soever by  other  persons.  Under  this  doctrine,  the  application  of 
any  force,  however  slight  or  however  innocent  the  motive,  would 
be  unlawful.  But  society  could  not  exist  upon  this  basis.  To 
make  unlawful  and  actionable  all  the  casual  contacts  of  social  life 
would  be  impracticable,  and  would  put  well-disposed  persons  com- 
pletely at  the  mercy  of  the  ill-natured  and  litigious.  Therefore, 
as  a  matter  of  public  good,  the  law  declines  to  take  cognizance  of 
the  slight  and  inconsequential  applications  of  force  incident  to 
ordinary  life,  so  long  as  they  are  merely  casual,  and  not  the  result 
of  evil  design  or  motive.  If,  however,  one,  designing  to  humiliate 
or  insult  or  injure  another,  applies  to  his  person  no  more  force 
than  frequently  occurs  in  the  conduct  of  ordinary  affairs,  the  law 
holds  him  responsible,  and  will  not  only  prosecute  him  criminally, 
but  gives  to  the  individual  whose  person  has  been  thus  maliciously 
interfered  with  a  right  to  recover  damages. 

And  so  through  the  whole  range  of  human  conduct.  "Whenever 
an  interference  with  individual  right  is  exeused  on  the  grounds 
of  public  policy  and  convenience,  the  excuse  is  designed  for  the 
law-abiding  and  well-meaning,  and  not  as  a  shield  to  the  vicious. 

"When  we  say  that  the  absence  of  evil  motive  is  not  ordinarily 
a  defense  against  liability  in  the  law  of  torts,  we  mean  a  defense 
against  just  compensation  for  injuries  actually  sustained.  There 
is  an  anomalous  doctrine  known  as  punitory  or  exemplary  dam- 
age.    It  has  no  place  in  enlightened  jurisprudence,  but  is  so 


MUNICIPAL.  LAW   AND   ITS   SUBJECT    MATTER.  161 

firmly  established  by  precedent  that  it  seems  useless  to  decry 
against  it.  Under  this  doctrine,  where  a  wrong  has  been  com- 
mitted against  an  individual  through  gross  wantonness  or  with 
evil  motive,  the  wrong-doer  may  be  compelled,  at  the  suit  of  the 
injured  party,  to  pay  to  him  a  sum  in  addition  to  the  actual 
injury  sustained,  by  way  of  punishment  or  "smart  money." 
Such  damage  is  only  recoverable  in  cases  of  gross  wantonness  or 
malicious  injury,  and  in  this  character  of  cases  and  as  to  this 
kind  of  damage  the  mental  attitude  of  the  wrong-doer  is  material. 

In  Contract  Law. — Contract  obligation  always  has  its  legal  basis 
in  the  agreement  of  the  parties.  Assent  of  the  mind  being  essen- 
tial to  an  agreement,  mental  capacity  at  the  time  the  contract  is 
entered  into  is  always  a  controlling  question,  and  if  there  be  no 
such  capacity,  there  can  be  no  assent ;  if  there  be  no  assent,  there 
can  be  no  agreement;  if  there  be  no  agreement,  there  can  be  no 
contract,  so  that  contract  obligation  can  not  exist  except  as  a 
result  of  mental  capacity  existing  when  the  obligation  is  assumed. 
It  must,  however,  be  borne  in  mind  that  contract  obligation  comes 
into  being  as  soon  as  an  agreement  having  all  the  legal  require- 
ments is  entered  into,  and  that  obligation,  once  fixed,  is  not  there- 
after affected  by  change  in  the  mental  condition  of  the  parties, 
subsequently  arising,  and  the  obligation  must  be  met  by  the  par- 
ties upon  whom  it  rests,  and  motives  and  reasons  for  failure  can 
not  be  received  as  a  discharge  thereof.  "We  therefore  find  that 
the  mental  capacity  of  the  parties  to  an  agreement,  at  the  time 
it  is  entered  into,  is  of  vital  consequence,  and  that  no  true  con- 
tract obligation  can  be  assumed  in  the  absence  of  such  capacity, 
but  that  subsequent  mental  conditions  or  motives  inducing  the 
breach  of  contract  obligation  are  immaterial,  and  are  not  be  taken 
into  account  in  determining  the  rights  of  the  parties. 

In  this  connection,  we  must  distinguish  between  ordinary  con- 
tracts which  may  be  performed  by  a  single  act,  or  which  do  not 
involve  continuing  personal  performance,  and  those  which  do 
have  the  last  characteristic.  If  the  agreement  be  for  service,  or  in 
any  other  way  involves  the  exercise  of  mental  or  bodily  capacity, 
the  loss  of  either  to  such  an  extent  as  to  render  performance  im- 
possible will,  as  a  rule,  relieve  from  liability  for  subsequent  non- 
performance by  the  disabled  party,  and  would  also  relieve  the 
other  from  further  obligation  under  the  agreement;  the  law 
11 


162  AMERICAN   ELEMENTARY   LAW. 

making  such  adjustment  for  any  partial  performance  which  had 
taken  place  before  the  disability  occurred  as  justice  requires, 
under  all  the  circumstances  of  the  case. 

Recapitulating,  we  find  that,  in  criminal  law  and  tort  law, 
duty  is  imposed  by  the  sovereign  and  not  assumed  by  the  obligor, 
while  in  contract  law  the  duty  is  not  imposed  by  the  sovereign, 
but  is  voluntarily  assumed  by  the  obligor,  and  is  then  recognized 
by  the  sovereign. 

That  in  determining  what  conduct  shall  be  unlawful  from  the 
criminal  law  point  of  view  capacity  to  understand  the  act  and 
its  consequences,  the  design  to  do  the  act,  and  the  motive  prompt- 
ing it,  are  of  the  uttermost  consequence,  and  in  almost  all  in- 
stances give  legal  character  to  the  conduct. 

That  in  determining  what  conduct  is  unlawful,  from  the  tort 
point  of  view,  the  question  is  usually  to  be  decided  by  the  nature 
of  the  overt  act  or  the  manner  of  its  performance,  and  not  by 
the  accompanying  mental  condition  and  attitudes ;  that  in  a  few 
exceptional  cases,  as  explained  above,  this  rule  is  not  applied. 
That  where  conduct  is  unlawful  in  itself,  and  is  either  malicious 
or  grossly  wanton,  in  addition  to  compensatory  damage  the  law 
allows  punitive  or  exemplary  damage;  that,  in  such  cases,  the 
mental  attitude  is  important. 

That  in  contract  law  mental  capacity  at  the  time  the  agreement 
is  entered  into  is  absolutely  controlling;  that  subsequent  mental 
attitudes  either  as  to  mental  capacity  or  motive  are  immaterial, 
except  in  those  instances  in  which  the  contract  contemplates 
service  of  some  kind. 

Standards  of  Mental  Capacity. 

Whenever  legal  responsibility  for  conduct  is  made  to  depend  on 
the  mental  capacity  of  the  party  at  the  time  of  the  act  or  omission, 
the  standard  or  test  by  which  to  judge  such  capacity  is:  Did  the 
person,  at  the  time  of  such  act  or  omission,  have  sufficient  mental 
capacity  to  understand  the  nature  and  consequences  of  such  con- 
duct, and  to  contemplate  and  realize  its  natural  and  probable 
results?  If  so,  the  person  is  capacitated  and  legally  responsible; 
if  not,  he  is  incapacitated  and  legally  irresponsible.  The  test  is 
confined  to  the  particular  matter  under  investigation  and  the 
condition  of  the  mind  at  the  time  the  act  was  done  or  determined 


MUNICIPAL  LAW  AND  ITS  SUBJECT   MATTER.  163 

upon.  The  range  of  inquiry  may  be  widely  extended  in  order 
to  arrive  at  the  truth  with  reference  to  the  mental  attitude  as 
to  the  particular  conduct  at  the  particular  time,  but  ultimately, 
the  test  is:  Did  he  understand  the  nature  and  consequences  of 
that  particular  act  or  omission,  and  was  he  capable  of  contem- 
plating and  appreciating  the  natural  and  probable  results  at  the 
time  the  transaction  occurred? 

Ignorance  and  Mistake. 

How  shall  conduct  based  on  design  or  actuated  by  motive,  in- 
duced by  ignorance  of  material  matters  or  mistake  regarding 
them,  be  classed  and  judged?  Stating  it  differently:  Shall  ig- 
norance, or  mistake  of  law  or  of  fact,  ever  be  taken  into  account 
in  determining  the  quality  of  conduct ;  and,  if  so,  when,  and  under 
what  circumstances,  and  with  what  effect? 

It  is  a  very  general  rule  that  simple  ignorance  of  law  does  not 
excuse  conduct  otherwise  illegal,  nor  constitute  a  defense  against 
claims  or  demands  otherwise  good.  This  is  true  in  criminal,  tort, 
and  contract  law. 

Deception  as  to  the  law  may  be  considered  in  determining  rights 
and  liabilities  between  the  deceiver  and  the  deceived,  when  the 
latter  had,  under  the  circumsstances,  a  right  to  rely  upon  the 
former  for  legal  information  and  he  purposely,  or  through  gross 
negligence,  misled  him. 

Ignorance  of  fact,  in  criminal  law,  excuses  when  not  attributa- 
ble to  negligence.  Mistake  of  material  fact,  not  attributable  to 
negligence,  will  excuse,  in  criminal  law,  when  the  conduct  under 
investigation  would  have  been  lawful  had  the  assumed  fact  been 
real.  Ignorance  of  fact,  or  mistake  of  fact,  rarely  excuses,  in 
tort  law,  from  liability  for  actual  damages.  As  the  existence  of 
a  tort  always  depends  on  the  unlawfulness  of  the  act  or  omission. 
in  some  rare  cases,  when  the  element  of  unlawfulness  is  dependent 
entirely  upon  the  criminal  law,  ignorance  or  mistake  which  pre- 
vents the  act  from  being  criminal  will  also  prevent  it  from  being 
tortious.     These  instances  are  exceptional  and  rare. 

Ignorance  or  mistake  of  material  fact  by  both  parties  to  an 
agreement  will,  in  contract  law,  entitle  either  to  set  aside  the 
agreement.  Ignorance  or  mistake  of  fact  by  one  party,  not 
attributable  to  wrongful  conduct  by  the  other,  or  not  going  to 


164  AMERICAN   ELEMENTARY   LAW. 

the  existence  or  identity  of  the  subject  matter,  or  to  the  terms 
of  the  agreement,  will  not  avoid  the  agreement.  If,  however, 
either  party  be  mistaken  as  to  the  subject  matter  in  the  mind  of 
the  other,  or  as  to  the  terms  of  the  agreement,  there  is  no  meeting 
of  the  minds,  and  so  no  contract.  Care  must  be  taken  here  to 
distinguish  between  mistake  of  the  terms  of  the  agreement,  that 
is,  as  to  the  words  used,  and  mistake  of  the  meaning  of  words; 
for,  if  both  parties  use  the  same  words,  but  with  different  mean- 
ings, the  words  will  control  and  be  given  their  usual  meaning  and 
both  will  be  held  to  the  agreement  thus  interpreted.  If  the 
ignorance  of  one  party  be  attributable  to  the  other  under  such 
circumstances  as  to  constitute  fraud,  the  defrauded  party  can 
avoid  the  agreement. 

Accidents. 

There  is  another  phase  of  conduct  which  should  not  be  omitted, 
that  is,  those  occurrences  which  take  place  without  intent  on  the 
part  of  any  one  to  bring  them  about,  usually  called  accidents. 
It  is  not  unusual,  even  in  law  books,  to  define  an  accident  as  the 
happening  of  an  event  without  human  agency.  Such  events  cer- 
tainly are  accidents  but  there  are  many  other  events  in  which 
human  agency  has  been  the  real  occasion  of  the  occurrence  which 
are  as  truly  accidental  as  those  included  in  the  above  definition. 
It  is  with  accidents  in  this  latter  sense  that  the  law  deals  most 
frequently  and  with  regard  to  which  the  student  of  law  should 
have  the  most  accurate  conceptions. 

A  better  legal  definition  is,  The  happening  of  an  event  without 
human  agency  or,  if  through  human  agency,  without  the  con- 
currence of  the  will  of  him  by  whose  conduct  it  is  caused. 

The  law  divides  accidents  into  two  classes,  avoidable  and  in- 
evitable. Avoidable  accidents  include  all  such  happenings  as 
would  have  been  prevented  if  all  the  parties  sought  to  be  held 
liable  had  fully  discharged  all  their  legal  duties  to  prevent  the 
same.  Inevitable  accidents  include  all  those  happenings  which 
occur  without  human  agency  and  those  which  occur  through 
human  agency  notwithstanding  the  parties  sought  to  be  held 
liable  had  fully  discharged  all  their  legal  duties  in  the  premises. 

Keeping  this  distinction  in  mind  it  is  apparent  that  an  avoid- 
able accident  should  lead  to  liability  on  the  part  of  those  whose 


MUNICIPAL   LAW   AND   ITS   SUBJECT    MATTER.  165 

failure  of  duty  occasioned  it  to  the  full  extent  of  the  damage 
directly  resulting  therefrom ;  and  that  inevitable  accident  cannot 
be  made  the  basis  of  liability  at  all  except  by  some  one  who  by, 
agreement  or  law,  has  become  responsible  for  loss  occasioned 
thereby  as  an  insurer. 

It  must  always  be  borne  in  mind  that  liability  for  avoidable 
accidents,  as  for  all  other  legal  wrong,  is  limited  to  the  directly 
resulting  consequences,  that  is,  those  which  should  have  been 
anticipated  as  the  natural  and  probable  result  of  the  wrongful 
conduct.  Thus,  a  railroad  train  was  scheduled  for  a  certain  time. 
It  was  delayed  a  considerable  time  by  the  negligence  of  one  of  the. 
operatives.  In  proceeding  upon  its  way  on  the  delayed  schedule, 
it  encountered  a  cyclone,  which  crossed  its  track  for  a  width  of 
about  one-fourth  of  a  mile;  the  train  was  wrecked  and  its  pas- 
sengers injured.  Had  the  train  been  on  the  regular  schedule, 
it  would  have  passed  the  point  where  the  cyclone  crossed  the 
track  some  time  before  the  cyclone  arrived.  The  fixed  rule  of 
law  that  a  wrong-doer  is  not  liable  for  all  consequences  of  his 
wrongful  act,  but  for  those  only  which  he  intended,  or  which  an 
ordinarily  prudent  person  would  have  foreseen  as  probable  and 
natural,  was  applied,  and  it  was  Held :  that  the  resulting  wreck 
was  an  inevitable  accident,  as  there  was  no  causal  connection  be- 
tween the  negligence  which  delayed  the  train  and  the  injury — as 
no  human  foresight  could  have  anticipated  that  such  delay  would 
naturally  or  probably  result  in  a  meeting  of  the  train  with  the 
cyclone. 


CHAPTER  IV. 

MUNICIPAL  LAW  AND  ITS  SUBJECT  MATTER  (CONTD.). 

TO  WHOSE  CONDUCT  DOES  THE  LAW  LOOK  IN  AWARDING  BENEFITS 
AND    FIXING    LIABDLITY? 

Primary  Range  of  Right  and  Liability. 

The  normal  person  is  entitled  to  all  benefits  directly  arising 
from  his  own  lawful  conduct  put  forth  in  his  own  behalf ;  on  the 
other  hand,  he  is  legally  responsible  for  all  injurious  consequences 
arising  directly  from  his  own  unlawful  conduct.  The  scope  of 
his  own  action  and  the  benefits  arising  therefrom  and  the  liabilities 
attaching  thereto  constitute  the  primary  range  of  right  and 
liability.  Extensive  as  this  sphere  of  action,  and  as  far-reaching 
as  its  consequences  are,  it  by  no  means  covers  the  whole  field  of 
right  and  liability  resulting  from  conduct. 

Secondary  Range  of  Right  and  Liability. 

This  brings  us  to  the  larger  subject  of  the  rights  and  liabilities 
of  one  person  growing  out  of  the  conduct  of  another.  It  is  ap- 
parent that,  in  carrying  on  the  social  and  business  activities  of 
the  world,  no  one  can  confine  his  own  operations  strictly  to  him- 
self, but  of  necessity  must  come  in  contact  with  others,  and  for 
any  effective  life  he  must  operate  with  and  through  others.  This 
practical  condition  is  recognized  by  the  law,  and  by  far  the  greater 
number  of  rights  to  which  one  is  entitled  and  liabilities  to  which 
he  is  subjected  grow  out  of  and  depend  upon  the  conduct  of 
other  persons. 

There  are  numerous  legal  doctrines  upon  which  these  rights 
and  liabilities  are  based.  These  are:  (1)  legal  identity;  (2)  sub- 
stitution; (3)  co-operation;  (4)  express  agreement;  (5)  non- 
assignability of  duty  and  (6)  in  a  few  rare  cases  public  policy 
as  expressed  in  some  statute  creating  such  liabilities.  There  are 
other  analogous  doctrines,  which  are  sometimes  treated  as  lead- 
ing to  such  right  and  liability,  such,  for  illustration,  as  the  owner- 
ship of  property,  but  which,  upon  closer  inspection,  appear  not 


MUNICIPAL  LAW   AND  ITS  SUBJECT   MATTEB.  167 

to  belong  in  this  enumeration,  as  liability  arising  from  ownership 
i*  referable  to  the  conduct  of  the  owner  himself. 

Legal  Identity. 

In  the  first  edition  of  the  text  the  term  merger  was  used  to 
indicate  the  doctrine  now  under  consideration.  That  term  has  a 
well  established  legal  meaning.  The  doctrine  being  dealt  with 
is  only  one  of  a  number  of  applications  of  this  meaning  and 
hence  the  phrase  legal  identity  seems  preferable  in  this  con- 
nection. 

Legal  identity  is,  therefore,  used  to  indicate  the  Common  Law 
doctrine  that  the  legal  existence  of  the  woman  passes  into  that 
of  the  husband  upon  marriage.  The  old  Common  Law  doctrine 
is  fairly  well  expressed  in  the  statement  that  upon  marriage  the 
man  and  the  woman  became  one  and  that  one  is  the  man. 

This  doctrine  has  been  very  much  modified  in  later  years  but 
some  of  its  legal  results  remain  in  the  present  law.  Except  as 
modified  by  statute,  in  Common  Law  countries  upon  marriage  all 
the  property  rights  of  the  woman,  speaking  generally,  that  is, 
the  title  to  her  personalty  and  the  beneficial  use  of  her  realty  vest 
in  the  husband  and  he  is  made  responsible  for  all  of  the  wife's 
antenuptial  debts.  The  beneficial  results  of  her  conduct  inure 
to  his  benefit  and  civil  liability  resulting  from  her  wrongs,  so  far 
as  it  attaches  to  any  one,  rests  upon  him.  In  some  cases  this 
doctrine  is  carried  so  far  as  to  make  him  liable  for  her  criminal 
acts. 

In  the  Roman  Law  this  Common  Law  doctrine  of  merger  is 
unknown ;  the  marital  relation  is  more  in  the  nature  of  a  conjugal 
partnership,  each  spouse  retaining  his  and  her  separate  property 
rights  and  obligations,  and  each  being  entitled  to  the  profit  arising 
from  his  or  her  respective  estates. 

It  is  difficult  to  state  any  general  rules  of  American  law  on 
this  subject  at  this  time,  as  Common  and  Civil  Law  ideas  have 
acted  and  re-acted  upon  each  other  until  there  is  no  longer  uni- 
formity on  the  subject.  Enough  of  the  general  Common  Law 
doctrine,  however,  remains  in  our  American  jurisprudence  to 
hold  the  husband  responsible  for  all  torts  committed  by  his  wife, 
even  though  in  opposition  to  his  will,  and  for  all  contracts  made 
by  her  in  procuring  necessaries  for  herself  and  family,  even 


168  AMERICAN   ELEMENTARY   LAW. 

though  he  had  expressly  forbidden  the  agreement.  It  is  cus 
tomary  to  treat  this  last  liability  as  arising  from  agency  by 
necessity,  but  it  is  apparent  that  it  is  but  an  application  of  the 
doctrine  of  legal  identity. 

This  power  of  the  wife  to  bind  her  husband  against  his  will 
for  necessaries  must  be  distinguished  from  her  general  authority 
to  act  and  make  contracts  for  him  in  the  reasonable  and  proper 
conduct  of  their  household  affairs.  This  last  authority  is  clearly 
one  of  agency  and  comes  properly  under  the  doctrine  of  sub- 
stitution. 

Substitution. 

The  second  of  these  doctrines  is  that  which  permits  one  person 
to  substitute  another  for  himself  in  the  exercise  of  ordinary 
powers  and  rights.  The  doctrine  does  not  extend  to  powers, 
rights  or  privileges  growing  out  of  special  and  confidential  re- 
lations in  which  the  rights  of  other  persons  or  of  the  public  are 
involved.  These  must  be  exercised  by  the  person  himself,  or  not 
at  all.  The  range  of  practical  substitution  is,  nevertheless,  ex- 
tensive, and  of  extreme  importance.  The  effect  of  the  substi- 
tution is  to  make  the  substitute  or  representative,  the  alter  ego 
or  other  self,  of  the  constituent  or  party  making  the  substitution, 
within  the  limits  of  the  activity,  enterprise  or  matter  included 
within  the  substitution,  or,  as  it  is  frequently  expressed,  the  con- 
stituent is  bound  by  the  act  of  the  representative  committed 
within  the  scope  of  the  employment.  As  to  what  matters  are  em- 
braced in  the  substitution,  and  how  the  substitute  is  to  perform 
his  service,  the  agreement  of  the  parties  and  instructions  given 
by  the  constituent  to  the  substitute  are  binding  as  between  them 
and  are  to  be  taken  as  the  basis  of  adjustment  of  their  rights  re- 
spectively. These  agreements  and  instructions  constitute  the 
true  bounds  or  limits  of  the  substitution  and  are,  therefore,  also 
binding  upon  all  parties  who  have  knowledge  of  them.  They  are 
not  binding,  however,  upon  third  persons  not  having  knowledge 
or  notice  of  their  existence.  The  constituent  having  substituted 
his  representative  for  himself  in  the  exercise  of  a  certain  power 
or  right,  third  persons  not  otherwise  advised  are  permitted  to 
judge  of  the  extent  and  scope  of  the  substitution  and  the  author- 
ity of  the  substitute  by  the  facts  and  circumstances  surrounding 


MUNICIPAL   LAW   AND   ITS   SUBJECT    MATTER.  169 

the  transaction  as  they  would  be  reasonably  interpreted  by  a  man 
of  ordinary  judgment  and  prudence.  Hence  it  follows  that,  al- 
though the  constituent  may  have  expressly  forbidden  the  doing 
of  a  certain  thing  within  the  reasonably  apparent  scope  of  author- 
ity of  the  substitute,  if,  nevertheless,  the  substitute  does  do  the 
forbidden  thing,  and  in  so  doing  unlawfully  interferes  with  the 
rights  of  others,  who  have  no  knowledge  or  notice  of  these  orders 
or  instructions,  these  third  parties  can  look  to  the  constituent 
and  hold  him  responsible  for  the  unauthorized  and  forbidden 
wrong  done  by  his  substitute. 

The  most  common  examples  of  substitution  are  in  the  rela- 
tions of  master  and  servant  and  of  principal  and  agent.  In  the 
first,  the  master  is  the  constituent,  the  servant  is  the  substitute ; 
in  the  second,  the  principal  is  the  constituent  and  the  agent  the 
substitute.  It  is  quite  difficult  to  draw  clearly  the  line  of  separa- 
tion between  these  two  relations  and  to  determine,  under  all  cir- 
cumstances, which,  in  fact,  exists  as  between  two  individuals. 
The  most  intelligent  basis  of  classification  seems  to  be  that  a 
servant  is  one  who  is  employed  to  exercise  powers  or  rights  when 
the  employment  does  not  contemplate  the  exercise  of  the  power 
to  contract  and  thus  the  establishment  of  new  legal  relations  with 
other  parties,  and  that  an  agent  is  one  who  is  employed  to  exercise 
the  powers  and  rights  of  the  constituent  to  contract  in  such  way 
as  to  bring  about  or  establish  new  legal  relations  with  third  per- 
sons. Even  this  basis  of  separation  is  not  free  from  confusion 
as,  under  it,  in  many  instances  the  same  persons  will,  at  the  same 
time,  sustain  toward  each  other  both  the  relation  of  principal 
and  agent  and  master  and  servant,  so  that  as  to  one  act  or  series 
of  acts  their  rights  and  liabilities  would  be  judged  by  the  rules 
of  law  applicable  to  master  and  servant,  while  as  to  other  con- 
current acts  or  series  of  acts  they  would  be  judged  by  the  rules 
of  law  applicable  to  principal  and  agent.  This  much  of  con- 
fusion seems  to  be  inherent  in  the  situation.  Fortunately,  the 
rules  of  law  as  to  the  two  relations  are  based  upon  the  same  gen- 
eral principles,  and  in  their  main  features  are  identical. 

Legal  substitution,  with  few  possible  exceptions  not  requiring 
notice  in  this  connection,  always  results  from  agreement  of  the 
parties.  This  agreement  usually  precedes  the  act  done  by  the  sub- 
stitute for  the  constituent,  sometimes  it  is  concurrent  with  the 


170  AMERICAN   ELEMENTARY   LAW. 

act,  and  sometimes  is  subsequent.  The  latter  method  of  substi- 
tution is  called  ratification,  and  has  some  characteristics  peculiar 
to  itself.  The  first  two  classes,  that  is,  the  antecedent  and  con- 
current, have  nothing  peculiar  in  their  nature  nor  special  in  their 
designations,  except  that  in  some  contracts  of  service  the  minor- 
ity or  coventure  of  the  servant  is  not  an  incapacity  as  to  entering 
into  the  agreement  and  subsequent  incapacity  to  perform  the 
agreement  will  terminate  it. 

Co-operation. 

The  third  doctrine  upon  which  one  is  held  responsible  for  the 
conduct  of  another  is  co-operation.  Where  two  or  more  persons 
act  together  with  a  common  design  and  understanding  to  ac- 
complish a  common  purpose,  each  is  responsible  for  the  conduct 
of  the  other,  within  the  limits  of  the  common  design.  The  doc- 
trine is  simple,  but  far-reaching.  In  Civil  Law,  it  is  usually 
known  as  co-operation,  or  joint  action ;  in  Criminal  Law,  as  con- 
spiracy. In  this,  as  in  the  doctrine  of  substitution,  the  limit  of 
liability  as  between  the  parties  themselves,  in  those  cases  in  which 
adjustment  between  them  is  permitted  at  all,  is  the  common  un- 
derstanding and  agreement;  but  as  between  each  of  these  par- 
ties and  third  persons  affected  by  their  conduct,  the  limit  of  lia- 
bility is  the  reasonable  scope  of  the  enterprise.  To  illustrate: 
A  and  B  agree  together  to  acquire  and  conduct  a  certain  business, 
and  A  is  put  in  charge,  with  an  understanding  between  the  two 
that  the  business  is  to  be  conducted  in  a  certain  way  and  within 
a  certain  limit  of  expense.  If  A  should  disregard  this  under- 
standing and  conduct  the  business  on  other  lines  and  at  greater 
expense  than  agreed  upon  as  between  him  and  B,  their  rights 
will  be  adjusted  on  the  basis  of  the  understanding,  and  A  must 
bear  the  loss  incident  to  his  departure.  If,  however,  A  should 
do  some  act  within  the  reasonably  apparent  scope  of  the  business 
or  enterprise  which  should  affect  third  parties,  such  parties  could 
hold  both  A  and  B  responsible  for  injurious  results;  unless,  of 
course,  the  third  party  had  knowledge  of  the  limit  of  A's  author- 
ity. This  illustration  is  an  example  of  joint  action  in  a  lawful 
enterprise,  and  gives  the  rules  of  law  applicable  there.  If  we 
change  it  and  have  A  and  B  engaged  jointly  in  an  unlawful 
attack  upon   C.  here  no  right  of  contribution  would  exist  as 


MUNICIPAL  LAW  AND  ITS   SUBJECT  MATTER.  171 

between  A  and  B,  both  being  guilty  before  the  law.  If  A  should 
injure  C  by  act  within  the  original  plan,  B  would  be  equally  re- 
sponsible with  him  for  such  injury.  Also,  if  A  should  do  some 
act  which  had  not  been  specifically  agreed  upon,  but  which  was 
such  an  one  as  should  naturally  and  probably  have  been  antici- 
pated as  a  part  or  direct  result  of  the  carrying  out  of  the  common 
design,  both  would  still  be  responsible.  If,  however,  A  should 
depart  from  the  common  design  and  do  some  act  not  included 
therein,  or  not  so  connected  therewith  as  to  have  been  reasonably 
anticipated  as  a  part  of  or  natural  result  of  the  scheme,  then  A 
alone  would  be  responsible 

Express  Agreement. 

One  person  may  further  become  responsible  for  the  conduct 
of  another,  not  generally,  but  to  a  designated  person  or  persons  by 
express  agreement  to  that  effect.  The  most  frequent  illustrations 
of  this  are  contracts  of  suretyship,  and  of  insurance.  In  the 
first,  the  party  bound  expressly  agrees  with  the  designated  per- 
son that  another  designated  person  will  do  a  certain  thing,  and 
if  he  does  not,  he,  the  surety  or  indemnifier,  will  do  the  act  him- 
self. In  the  second,  the  party  agrees  for  a  certain  consideration 
passing  to  him  from  another  interested  in  the  happening  of  a  cer- 
tain event  or  contingency,  that  upon  such  happening  he  will  pay 
to  him  or  to  those  designated  by  him  a  certain  sum  of  money. 
Here,  as  in  the  case  of  fire  insurance,  the  act  or  omission  bring- 
ing about  the  contingency  contemplated,  is  not  limited  to  any  one 
person  or  persons,  but  may  be  the  conduct  of  any  one,  except  the 
willful  destruction  of  the  property  by  the  insured,  which  would 
bring  into  operation  other  principles  of  law.  In  this  class  of 
cases  dependent  upon  express  contract,  the  nature,  extent  and 
terms  of  liability  depend  upon  the  agreement  itself,  construed  by 
the  applicable  rules  of  law. 

Non-Assignability  of  Duty. 

The  law  recognizes  the  assignment  of  rights,  in  many  instances, 
and  the  delegation  of  power.  It  also  recognizes  the  substitution 
of  another  to  discharge  duty,  in  many  instances,  though  not  in 
all;  but  such  substitution  is  not  of  itself  a  discharge  of  the  duty 
or  a  release  of  the  original  obligor.     The  obligation  or  duty  still 


172  AMERICAN   ELEMENTARY   LAW. 

remains  upon  him  who  primarily  owed  it.  If  the  substitute  shall 
discharge  the  obligation  according  to  its  terms,  it  is,  of  course, 
thereby  extinguished.  If  he  does  not,  the  original  obligor  is 
bound  to  the  obligee,  and  can  not  avail  himself  of  the  fact  that 
he  employed  another  to  discharge  the  duty  for  him.  To  state 
it  differently  the  law  permits  the  delegation  of  the  discharge  of 
duty  but  does  not  permit  the  assignment  or  transfer  of  the  duty 
itself  without  the  consent  of  him  in  whose  favor  the  obligation 
exists. 

To  illustrate :  If  one  person  owes  another  and  gives  to  a  third 
person  the  money  with  which  to  pay  the  debt,  and  this  third  per- 
son does  pay  the  debt,  the  obligation  is  as  fully  discharged  as  if 
payment  had  been  made  by  the  debtor  directly;  but,  if  the  third 
person  entrusted  with  the  money  shall  abscond,  the  debt  remains 
undischarged,  and  it  is  no  defense  against  the  creditor's  claim 
that  the  debtor  had  provided  the  means  and  employed  another 
to  make  the  payment.  This  illustration,  while  simple,  sets  forth 
a  principle  far-reaching  in  the  law,  which  is  applied  under  many 
and  widely  different  conditions  and  circumstances.  Indeed,  the 
doctrine  seems  to  be  of  universal  application  that  the  discharge 
of  duty  can  not  be  given  over  or  assigned  to  another  with  the 
effect  of  relieving  the  original  obligor  from  liability,  except  by 
the  consent  of  the  person  to  whom  the  duty  is  due.  By  a  tripar- 
tite agreement  between  the  obligor,  the  substitute  and  the  obligee, 
the  former  may  be  discharged  and  the  substitute  become  solely 
responsible.     But  this  grows  out  of  the  assent  of  the  obligee. 

Another  familiar  illustration  of  this  doctrine  is  found  in  its 
application  against  railroad  companies,  based  on  their  duty  to 
protect  passengers.  If  a  conductor  in  charge  of  a  train  should 
commit  an  assault  upon  a  passenger,  the  passenger  would  have 
a  dual  basis  of  liability  on  the  part  of  the  company.  First,  the 
doctrine  of  substitution ;  that  the  company  had  selected  a  conduc- 
tor, put  him  in  its  place  to  control  and  operate  its  train,  and  that 
his  unlawful  conduct  within  the  scope  of  his  employment  was, 
therefore,  the  conduct  of  the  company,  his  constituent,  for  which 
it  is  responsible.  The  second  would  be  the  non-assignability  of 
the  duty  of  protection.  "When  a  carrier  receives  a  passenger  for 
the  purpose  of  transportation,  it  owes  to  him  the  duty  of  reason- 
able care  for  his  protection  en  route,  and  if  it  fails  to  discharge 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  173 

this  duty  of  using  reasorable  care  for  this  purpose  and  injury 
results  to  the  passenger,  it  is  responsible  for  the  nondischarge  of 
the  duty.  If,  however,  the  assault  is  not  committed  by  the  con- 
ductor, but  by  a  fellow  passenger,  the  doctrine  of  substitution 
does  not  apply ;  and,  if  recovery  can  be  had  at  all,  it  must  be  based 
upon  the  fact  that  the  company  has  failed  to  use  reasonable  care 
to  protect  the  injured  passenger  from  the  unlawful  acts  of  the 
stranger. 

Public  Policy. 

In  rare  instances  a  legislature  from  considerations  of  public 
policy  will  enact  a  statute  to  the  effect  that  one  person  shall  be 
liable  for  the  conduct  of  some  other  person.  Some  of  these  stat- 
utes have  been  upheld  as  not  violative  of  the  provisions  of  the 
State  and  Federal  constitutions,  regarding  due  process  of  law 
and  equal  protection  and  have  been  upheld.  These  instances  are 
so  rare  that  they  do  not  require  detailed  treatment  or  discussion 
in  a  treatise  of  this  kind. 

Analogous  Relations  Sometimes  Supposed  to  Lead  to  Liability. 

Liability  is  often  charged  to  a  person  because  of  his  ownership 
of  some  particular  thing  or  things.  Sometimes  the  circumstances 
are  such  that,  on  casual  consideration,  it  seems  that  the  owner 
is  responsible  to  other  persons  for  the  conduct  of  third  parties 
with  reference  to  things  owned  by  him.  It  is  possible  that  this 
is  really  true  in  a  few  instances,  but  in  almost  all,  if  not  all,  cases 
of  such  liability,  in  its  last  analysis,  it  may  be  traced  either  to  the 
affirmative  conduct  of  the  owner  himself,  or  to  the  fact  that  he 
has  failed  to  discharge  some  non-assignable  duty  resting  on  him 
as  owner.  Instances  are  very  rare,  if  indeed,  any  in  fact  exist, 
in  which  one  is  responsible  for  the  condition  of  his  property 
which  does  not  result  from  his  own  affirmative  act,  or  his  failure 
to  use  due  care  for  the  rights  of  others;  and,  whenever  either  of 
these  conditions  exist,  the  liability  is  really  due  to  his  own  con- 
duct, or  it  is  based  on  the  conduct  of  some  one  substituted  for 
him  in  the  exercise  of  his  right  of  control  or  use  of  the  property. 


174  AMERICAN   ELEMENTARY   LAW. 

TO     WHAT     CONSEQUENCES     OF     CONDUCT    DOES     LEGAL     LIABILITY 

EXTEND  ? 

When  we  consider  that,  from  the  beginning  of  the  world  up  to 
the  present  time,  there  have  been  infinite  lines  of  unbroken  causa- 
tion, that  everything  that  is  now  results  from  that  which  has  been, 
and  that  nothing  could  be  as  it  now  is  except  for  that  which  has 
preceded  and  led  up  to  it,  and  consider  that  this  applies  as  well 
to  the  injurious  consequences  of  conduct  as  to  any  other  thing 
in  life,  we  see  the  absolute  necessity  of  some  rule  by  which  to 
determine  how  far  back  of  an  injury  the  law  will  go  in  fixing  legal 
liability.  A  person  is  unlawfully  injured  by  the  explosion  of 
dynamite.  "Who  shall  pay  ?  The  man  who  directly  occasioned  the 
explosion,  the  man  who  sold  him  the  dynamite,  the  man  who  made 
the  dynamite,  the  man  who  invented  dynamite,  or  the  man  who 
invented  or  discovered  the  constituent  elements  which  go  to  make 
up  the  explosive  ?  Some  rational  and  fairly  just  answer  must  be 
given  to  questions  of  this  sort,  or  litigation  would  be  interminable, 
and  the  liabilities  of  life  too  great  to  be  borne.  Something  has 
been  thought  and  a  great  deal  has  been  written  on  this  subject, 
and  many  tests  have  been  submitted,  and  have  proved  more  or  less 
efficient  and  just  in  their  application.  Numerous  incidental 
matters  have  been  dragged  into  the  discussion  at  different  times 
and  by  different  persons,  such  as  the  effect  on  legal  responsibility 
of  the  intervention  of  an  independent  agent  or  agents  between  the 
wrongful  act  of  the  party  sought  to  be  charged  and  the  conse- 
quential damages  for  which  recovery  is  desired.  And  the  end 
is  not  yet. 

The  simplest,  most  just  and  satisfactory  test  and,  as  it  seems, 
the  true  one,  is  found  by  applying  to  the  facts  the  law's  original 
standard  of  measurement,  the  average  man.  The  rule  thus 
obtained  is  that  the  law  holds  each  person  responsible  for  such 
consequences  of  his  conduct  as  were  either  intended  by  him  as  re- 
sults, or  as  a  reasonably  prudent  person  situated  as  he  was  would 
reasonably  have  anticipated  as  the  natural  and  probable  conse- 
quences of  the  act  or  omission.  This  test  is  simple  in  itself  and 
fairly  easy  of  application.  If  it  be  adopted,  it  eliminates  much 
of  the  confusion  arising  in  the  application  of  some  of  the  others  by 
reason  of  the  intervention  of  independent  agencies.  The  rule  on 
that  subject  would  be  reduced  to  this :  If  the  intervention  of  the 


MUNICIPAL  LAW  AND  ITS  SUBJECT   MATTER.  175 

independent  agent  should  have  been  reasonably  anticipated,  such 
intervention  and  its  co-operative  effects  are  among  the  conse- 
quences of  the  original  act  which  a  reasonably  prudent  man  would 
have  foreseen  and  which,  therefore,  every  man  is  justly  held  to 
have  foreseen  and  contemplated ;  if,  on  the  other  hand,  the  cir- 
cumstances are  such  that  such  independent  intervention  would 
not  reasonably  have  been  anticipated,  it  breaks  the  causal  con- 
nection, and  no  liability  attaches  to  the  original  wrong-doer. 

This  doctrine  is  as  applicable  in  cases  within  secondary  range 
of  right  and  liability  as  those  within  the  primary.  If  a  person 
is  to  be  held  responsible  at  all  for  the  conduct  of  another,  the 
consequences  of  the  conduct  for  which  he  is  held  are  determined 
by  the  same  rules  as  in  cases  of  wrong  by  him  personally. 

We  are  not  now  discussing  the  vexed  question  of  remuneration 
or  contribution  among  wrong-doers,  but  the  simple  proposition 
as  to  what  consequences  of  wrong  legally  attributable  to  him  each 
wrong-doer  is  held  responsible  for. 

This  subject  is  usually  treated  as  the  doctrine  of  remote  and 
proximate  cause,  and  most  of  the  learning  and  much  of  the  con 
fusion  in  the  books  pertaining  to  it  can  be  found  under  those 
catch-words. 


CHAPTER  V. 

MUNICIPAL  LAW  AND  ITS  SUBJECT  MATTER    (CONTD.) 
STATUS   AS   AFFECTING   LEGAL    RESPONSIBILITY. 

The  ordinary  rules  of  law  are  made  by  normal  persons  for  the 
government  of  normal  persons,  and  there  is  no  occasion  to  discuss 
status  as  applicable  to  them  further  than  to  say  that  all  persons 
are  primarily  presumed  to  be  normal,  and  if  any  individual  is 
generally,  or  as  to  any  particular  thing  under  investigation,  ab- 
normal, these  facts  must  be  made  to  appear  in  his  behalf,  or  he 
will  be  judged  and  his  rights  and  liabilities  tested  by  the  ordinary 
rules.  If,  however,  his  condition  be  generally  abnormal,  or  if  he 
be  abnormal  as  to  the  particular  matter  under  investigation,  and 
this  is  made  to  appear,  then,  in  determining  his  legal  rights  and 
liabilities,  he  will  be  judged  by  such  of  the  general  rules  as  are 
not  affected  by  his  particular  incapacity,  supplemented  by  the 
special  rules  applicable  to  his  particular  abnormal  condition. 

The  principal  abnormal  conditions  are  mental  unsoundness, 
drunkenness,  duress,  infancy  and  coverture.  Some  of  theie  are 
incapacities  both  in  law  and  in  fact;  some  of  them  are  incapaci- 
ties in  law,  wthout  any  corresponding  incapacity  in  fact. 

Mental  Unsoundness. 

This,  in  its  different  effects  upon  conduct,  and  consequently 
upon  the  responsibility  of  the  party,  has  been  considered  at  some 
length  under  the  preceding  head  of  what  constitutes  conduct, 
and  need  not  be  again  dealt  with  here. 

Drunkenness. 

The  use  of  intoxicants,  not  so  extensive  as  to  affect  the  intellect 
and  judgment  to  the  point  that  the  person  does  not  understand 
the  nature  and  consequences  of  his  conduct,  is  not  an  incapacity. 
If,  however,  the  mind  has  been  so  far  affected  as  temporarily  to 
deprive  one  of  the  capacity  to  understand  and  appreciate  the 
nature  of  his  conduct  and  its  natural  and  probable  consequences, 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTER.  177 

he  is,  for  the  time  being,  of  unsound  mind,  and  is  not  legally 
responsible  for  any  act,  or  its  consequences,  which  involves  formed 
design  and  purpose  or  evil  motive.  This  statement  must  be 
modified  to  this  extent:  if  the  evil  design  and  motive  exist  in  the 
mind  of  the  party  and  he,  desiring  and  purposing  to  carry  them 
out,  shall  voluntarily  intoxicate  himself  and  while  in  this  condi- 
tion execute  the  design  formed  while  sober,  he  will  be  respon- 
sible as  though  he  had  not  been  intoxicated. 

If  the  intoxication  is  so  severe  and  protracted  as  to  bring  about 
a  fixed  state  of  mental  unsoundness,  as  is  usually  the  case  in 
delirium  tremens,  the  law  then  deals  with  the  condition  as  a 
disease,  and  the  responsibility  of  the  party  is  measured  by  the 
same  rules  as  any  other  person  suffering  from  insanity. 

Duress. 

Duress  is  coercive  undue  influence  brought  to  bear  on  the  will, 
without  reaching  the  intellect  by  means  of  force  or  threats. 
That  is  to  say,  it  is  threatened  injury  to  the  person  or  property  of 
the  party,  or  those  under  his  protection,  of  such  nature  as  prac- 
tically to  deprive  him  of  free  choice  in  the  matter.  Its  effect  is 
different  in  different  departments  of  the  law.  In  Criminal  Law, 
where  evil  intent  and  motive  is  usually  the  gist  of  the  charge, 
duress  is  almost  always  a  defense.  In  Tort  Law,  where  acts  and 
their  consequences  are  the  principal  consideration,  it  is  not  a 
defense,  except  in  those  few  instances  in  which  evil  motive  is  an 
element  of  the  tort,  or  when  exercised  by  the  husband  over  the 
wife.  In  Contract  Law,  as  the  basis  of  liability  is  the  free  assent 
of  the  party  bound,  duress,  operating  upon  the  mind  of  one  of  the 
parties  to  the  agreement,  destroys  the  legal  element  of  assent, 
and  the  supposed  agreement  or  contract  extorted  from  him  is 
voidable  at  his  instance.  If,  however,  contract  obligation  has 
been  voluntarily  assumed,  duress  producing  breach  is  not  an 
excuse  for  the  breach.  The  party  is  still  bound  by  the  contract, 
and  it  may  be  enforced  against  him. 

Infancy. 

In  Common  Law  countries  a  person  is  deemed  to  be  an  infant 
or  minor  until  he  attains  twenty-one  years  of  age.     Persons 
under  that  age  differ  very  greatly  in  point  of  fact  both  in  intel- 
12 


178  AMERICAN   ELEMENTARY   LAW. 

lectual  and  will  power.  It  is  also  apparent  that  no  sudden  great 
change  takes  place  in  the  capacity  and  power  of  a  person  upon 
attaining  this  age.  Many  persons  under  the  age  of  twenty-one 
are  better  developed  and  more  discreet  than  many  others  above 
that  age.  Still  some  line  of  separation  between  the  minor  and 
the  adult  must  necessarily  be  drawn  and  the  Common  Law  places 
it  at  twenty-one  years,  and  declares  all  persons  under  that  age 
to  be  infants  and  minors  and  all  over  that  age  to  be  adults. 

Every  adult  is  presumed  by  law  in  absence  of  proof  to  the 
contrary  to  be  capable  of  caring  for  himself  and  to  be  legally 
responsible  for  all  his  conduct.  Frequently  this  is  not  true  in 
fact.  In  such  cases  the  nature  and  extent  of  the  actual  incapac- 
ity must  be  plead  and  proven  to  entitle  the  party  whose  conduct 
is  under  investigation  to  the  benefit  of  it  or  to  subject  him  to  its 
disabilities  as  the  case  may  be. 

The  legal  effects  of  minority  cannot  be  stated  so  readily  and 
positively.  These  differ  according  to  the  point  of  view  and  to 
approximate  accuracy  we  must  consider  the  matter  separately 
with  reference  to  the  criminal,  tort,  and  contract  law. 

At  Common  Law  children  below  seven  years  of  age  are  con- 
clusively presumed  to  be  incapable  of  committing  crime  and  no 
proof  will  be  received  to  show  that  some  particular  child  under 
that  age  did  in  fact  have  sufficient  intelligence  to  entertain  crim- 
inal intent.  Between  the  ages  of  seven  and  fourteen  an  infant 
is  presumed  to  be  incapable  of  criminal  intent  but  this  presump- 
tion may  be  overcome  by  proof  showing  that  he  had  discretion 
sufficient  to  understand  the  nature  and  illegality  of  the  act  con- 
stituting the  offense.  An  infant  above  the  age  of  fourteen  is 
prima  facie  as  responsible  for  crime  as  an  adult. 

The  general  rule  of  law  is  that  an  infant  is  responsible  for 
torts  committed  by  him  to  the  same  extent  as  an  adult.  Duty 
in  the  law  of  torts  is  imposed  by  law  and  does  not  depend  upon 
the  capacity  of  the  party  doing  the  wrong  to  voluntarily  assume 
obligation  and  as  the  legal  duty  exists  its  violation  necessarily 
leads  to  liability  for  the  actual  damage  inflicted. 

There  are  a  few  torts  in  which  evil  intent  is  an  essential  ele- 
ment and  an  infant,  so  young  as  to  be  incapable  of  such  intent, 
cannot  commit  such  a  tort.  Where  a  tort  is  committed  with 
evil  intent  the  wrong-doer  is  responsible  for  exemplary  damage 


MUNICIPAL  LAW   AND   ITS  SUBJECT    MATTER.  179 

beyond  the  amount  necessary  to  compensate  the  injured  party. 
A  child  incapable  of  entertaining  such  evil  intent  cannot  be  held 
liable  for  exemplary  damage. 

In  Contract  Law,  infancy  is  prima  facie  good  ground  for  avoid- 
ing the  contract  by  the  infant,  though  the  adult  party  to  the 
agreement  is  bound.  An  infant  is,  however,  bound  by  contract 
for  necessaries  for  himself,  at  least  to  the  extent  that  he  must  pay 
for  them,  though  the  price  agreed  upon  will  not  be  enforced  if 
it  be  shown  that  it  is  unreasonable  or  unfair.  An  infant  may 
repudiate  or  avoid  his  contracts  for  personal  property,  either 
during  his  minority  or  within  a  reasonable  time  thereafter.  He 
can  not  repudiate  his  contracts  with  reference  to  real  estate  dur- 
ing his  minority,  but  may  within  a  reasonable  time  after  he  at- 
tains his  majority.  Failure  to  disaffirm  the  contract  in  a  reason- 
able time  after  attaining  majority  or  the  claim  or  exercise  of 
rights  under  the  contract  after  majority  in  such  way  as  to  indi- 
cate affirmative  acquiescence  in  the  contract,  or  in  such  way  as 
to  prejudice  appreciably  the  right  of  the  other  party,  destroys 
the  right  of  rescission.  If  the  infant  or  quondam  infant  still  has 
under  his  control  anything  acquired  by  the  contract,  or  had  this 
under  his  control  when  he  attained  his  majority,  he  can  not  re- 
pudiate the  contract  without  making  restitution  of  the  property 
or  value  which  he  has  or  had  at  his  majority.  If,  during  his 
minority,  he  consumed,  squandered  or  lost  the  property  or  money 
and  did  not,  when  he  attained  his  majority,  have  anything  re- 
ceived by  him  under  the  contract,  he  is  excused  from  restitution. 

Coverture. 

Among  the  effects  of  marriage  upon  the  woman  at  Common 
Law  was  incapacity  to  bind  herself  by  contract.  Having  lost  all 
control  over  her  property,  and  being  without  capacity  to  acquire 
more,  by  her  own  effort,  the  fact  of  her  nonliability  was  of  no 
material  loss  to  parties  with  whom  she  dealt.  She  was,  however, 
regarded  as  the  agent,  by  necessity,  of  her  husband  to  bind  him 
for  the  reasonable  value  of  necessaries  for  herself  and  children, 
and  this  agency  could  not  be  repudiated  by  the  husband  except 
upon  proof  that  he  had,  in  good  faith,  provided  for  her  so  that 
the  necessity  from  which  the  agency  was  said  to  arise  did  not,  in 
fact,  exist.     The  extent  to  which  she  could  thus  bind  him  and  his 


180  AMERICAN  ELEMENTARY   LAW. 

property  as  an  agent  by  necessity,  varied  with  their  station  and 
condition  in  life.  The  limits  were  narrow,  and  usually  strictly 
adhered  to.  Under  the  ordinary  domestic  relations,  her  author- 
ity to  bind  her  husband  by  an  implied  agency  was  much  greater. 
Her  authority  thus  to  bind  him  was  implied  from  the  marital 
relation,  unless  something  was  done  by  the  husband  to  show  a 
different  intent  on  his  part.  Notice  that  he  would  not  be  bound, 
or  a  course  of  dealing  which  put  others  upon  reasonable  notice 
of  the  fact  that  he  would  not  recognize  the  wife  as  his  agent  be- 
yond the  limits  of  agency  by  necessity  as  fixed  by  law,  would  re- 
lieve him  from  liability  for  her  ordinary  undertakings  in  his  be- 
half. These  matters  are  somewhat  apart  from  the  subject  di- 
rectly under  consideration.  Returning  to  that,  we  find  that  at 
Common  Law  the  married  woman  was  incapaciated  to  bind  her- 
self by  contract,  or  to  convey  property.  The  effect  of  coverture 
upon  the  contractual  power  of  the  woman  in  most,  if  not  all,  the 
States  of  the  Union,  is  now  largely  a  matter  of  statute.  These 
statutes,  except  in  Louisiana,  are  looked  upon  as  amendatory  of 
the  Common  Law  and  are  construed  with  that  as  a  background, 
so  that  we  may  say  that,  in  all  of  the  States  except  Louisiana, 
the  capacity  of  a  married  woman  to  contract  is  regulated  by  the 
Common  Law,  as  modified  by  the  applicable  constitutional  and 
statutory  enactments  of  the  particular  State. 

Coverture  does  not  affect  the  woman 's  liability  for  tort,  except 
in  the  one  ease  of  duress  by  the  husband.  As  to  this  it  is  said 
that,  if  it  be  clearly  shown  that  the  woman  was  coerced  by  her 
husband  into  the  commission  of  the  wrong,  he,  and  not  she,  is 
liable  therefor.  If  the  tort  by  the  married  woman  is  not  con- 
curred in  by  the  husband,  still  both  she  and  he  are  liable;  but, 
if  he  is  compelled  to  pay,  he  may  have  compensation  from  her 
separate  estate,  if  any  she  has.  If  the  tort  is  committed  by  them 
jointly,  or  if  committed  by  the  wife  with  the  acquiescence  or  ap- 
proval of  the  husband,  both  are  responsible  to  the  third  party, 
and  contribution  or  restitution  between  them  must  be  determined 
by  the  general  rules  of  law  without  reference  to  the  fact  of 
coverture. 

Coverture  has  no  effect  upon  liability  for  crime.  In  a  few 
instances,  coercion  by  the  husband,  although  not  amounting  to 
duress  such  as  would  relieve  from  liability,  is  taken  into  account, 
and  punishment  of  the  woman  mitigated. 


MUNICIPAL  LAW   AND   ITS   SUBJECT   MATTER.  181 

Coverture  does  not  incapacitate  a  woman  to  act  as  the  servant, 
or  agent,  of  another,  and  as  such  she  may  exercise  powers  and 
make  contracts  for  and  in  behalf  of  her  principal  just  as  though 
she  were  unmarried.  The  theory  is  that  the  servant,  or  agent,  is 
but  a  substitute  for  the  master,  or  principal,  and  that  the  legal 
capacity  of  the  constituent  is  acting  through  the  representative, 
so  that  the  lack  of  capacity  in  the  latter  is  immaterial. 

RELATIONS  TO  SOVEREIGNTY. 

Governmental  Agencies. 

We  have  found  that  there  are  two  classes  of  persons,  natural 
and  artificial.  Sovereignty  deals  with  and  through  persons  of 
each  class.  Its  direct  representatives  are  different  legal  entities, 
created  by  it  to  act  as  its  agents  in  the  exercise  of  its  govern- 
mental functions.  Many  of  these  various  agencies  are  recog- 
nized in  law  as  having  legal  existence  distinct  from  that  of  their 
constituent  members.  In  their  several  capacities  as  separate  en- 
tities they  have  various  dealings  in  the  business  world  and  per- 
form many  acts  to  which,  if  performed  by  ordinary  individuals, 
legal  liability  would  attach.  These  legal  agencies,  existing  only 
in  theory  or  contemplation  of  law,  as  public  corporations,  can 
act  only  through  natural  persons,  and  these  natural  persons,  for 
the  time  being,  representing  the  governmental  agencies,  we  know 
as  different  classes  of  officers.  So  that  we  see  that  the  corporate 
governmental  agency  is  the  direct  representative  of  sovereignty 
and  the  natural  persons  exercising  the  powers  and  discharging 
the  duties  of  these  governmental  agencies  are  its  indirect  repre- 
sentatives. Many  questions  have  arisen  as  to  how  far  govern- 
mental agencies  and  public  officers  should  be  responsible  for  their 
conduct  and  its  results.  Questions  of  public  policy,  of  necessity, 
come  in  for  consideration,  as  well  as  matters  of  private  right. 
The  adjustments  and  resulting  rules  have  been  fairly  though  not 
absolutely  uniform  and  the  results  may  be  stated  with  reason- 
able, though  not  perfect,  accuracy. 

Direct  Representatives  of  Sovereignty. 

The  most  extensive  direct  sovereign  agent  in  the  United  States 
is  the  Federal  Government,  standing  for  the  people  of  the  United 
States,  created  by  their  will  and  carrying  out  their  purposes. 
Legal  responsibility  is  enforced  through  the  courts,  and  these 


182  AMERICAN   ELEMENTARY  LAW. 

courts  are  but  departments  of  the  government  created  by  the 
sovereign ;  and  the  question  has  often  arisen :  Shall  the  creator 
be  called  to  account  before  tribunals  of  its  own  formation  and  be 
judged  by  its  own  creature  ?  Closely  related  questions  are :  Shall 
the  people  of  the  United  States,  in  their  governmental  capacity, 
be  subject  to  suit  in  a  State  court  ?  and  shall  the  States  severally 
be  subject  to  suit  in  the  United  States  courts  or  the  courts  of 
other  States  ?  The  universal  answer  is  that  the  Federal  Govern- 
ment is  not  subject  to  suit  in  either  State  or  Federal  courts,  ex- 
cept upon  its  express  consent  given.  It  has  been  quite  liberal 
in  this  regard,  and  has  authorized  suits  against  itself  in  a  great 
many  instances,  and  has  even  gone  so  far  as  to  organize  and  main- 
tain several  courts  for  this  express  purpose,  which  have  no  juris- 
diction over  any  other  matters ;  so  that,  in  effect,  this  Government 
has  given  its  consent  to  be  sued  in  its  own  courts  in  almost  all 
classes  of  cases  that  can  arise  against  it.  If,  however,  any  claim 
should  come  up  not  provided  for  in  these  several  permissive  stat- 
utes, suit  could  not  be  brought  upon  it.  The  Federal  Govern- 
ment has  never  given  its  consent  to  suits  against  itself  in  a  State 
court,  and  can  not  be  sued  in  them. 

The  several  State  governments  are  the  direct  representatives  of 
sovereignty  in  the  several  States ;  and,  as  such,  are  immune  from 
suits  either  in  their  own  courts,  the  courts  of  other  States,  or  the 
Federal  courts,  unless  they  shall  have  antecedently  authorized 
or  consented  to  such  proceeding.  There  are  general  provisions 
in  the  Constitution  of  the  United  States,  acceded  to  by  all  the 
States,  by  virtue  of  winch  any  of  the  States  may  be  sued  in  the 
Supreme  Court  of  the  United  States  either  by  another  State  or 
by  the  Federal  Government.  No  other  Federal  court  can  enter- 
tain a  suit  against'  a  State  at  all,  and  the  Supreme  Court  can  not, 
except  within  the  particular  instances  specified  in  the  Federal 
Constitution.  There  are  no  general  laws  of  the  several  States 
subjecting  their  respective  State  governments  to  suit  in  their 
ewn  courts,  so  that  they  may  not  be  sued  or  held  legally  within 
their  owe  tribunals,  unless,  by  special  statutory  enactment,  they 
have  given  authority  for  the  proceeding.  No  State  has  ever 
given  its  consent  to  be  sued  in  the  courts  of  another  State,  and 
no  such  jurisdiction  exists. 


MUNICIPAL   LAW   AND   ITS   SUBJECT   MATTES.  183 

Political  Subdivisions — Counties. 

Each  State  in  the  Union,  for  its  general  convenience  in  the 
administration  of  its  internal  affairs,  is  subdivided  into  small 
districts,  usually  called  counties,  sometimes  parishes  or  shires. 
These  divisions  have  certain  political  autonomy,  and  through 
their  political  agencies  transact  business  and  exercise  such  of  the 
functions  of  sovereignty  as  are  committed  to  them.  They  are 
not  recognized  as  being  so  directly  representative  of  sovereignty 
as  the  State  government ;  still,  they  share  in  immunity  from  legal 
responsibility  and  suit,  to  a  very  great  extent.  They  are  never 
responsible  for  injuries  occasioned  in  the  direct  exercise  of 
their  political  or  governmental  authority.  They  are  never  re- 
sponsible for  torts  of  any  kind,  unless  there  be  some  constitutional 
or  statutory  provision  upon  which  such  liability  can  be  based. 
When  they  are  given  authority  to  contract,  this  is  construed  as 
permission  to  the  other  contracting  party  to  sue,  in  the  event  the 
contract  is  broken  by  the  county.  In  many  States  it  is  required, 
as  a  condition  precedent  to  a  suit  against  a  county  for  money, 
that  the  claim  shall  be  presented  and  demand  made  to  the  county 
officers  charged  with  the  administration  of  its  financial  affairs. 

Incorporated  Cities  and  Towns. 

The  next  political  subdivisions  recognized  by  law  as  capable  of 
sustaining  legal  relations  are  cities  and  towns  incorporated  either 
under  general  or  special  laws.  These  are  regarded  as  still  further 
removed  from  the  general  sovereignty  of  the  State  and  as 
more  particularly  representing  local  interests,  and  there  is 
a  consequent  diminution  of  immunity  from  suit.  These  corpora- 
tions also  have  their  dual  life,  the  one  phase  consisting  of  the 
exercise  of  political  or  governmental  authority  and  the  other 
of  the  conduct  of  their  local  business  affairs.  So  far  as  the  first 
powers  are  concerned,  we  may  say,  generally,  that  no  liability 
at  all  exists;  that  is,  that  a  city  or  town  is  never  held  legally  re- 
sponsible for  injuries  resulting  directly  from  the  exercise  of  a 
general  governmental  power.  On  the  other  hand,  they  are  held 
responsible  for  all  injuries  directly  resulting  from  the  exercise 
of  their  powers  as  local  business  agents,  or  as  representatives  of 
the  local  business  interests  of  their  respective  communities. 
These  rules  are  easy  of  statement,  but  exceedingly  difficult  of  ap- 


184  AMERICAN   ELEMENTARY   LAW. 

plication.  Just  where  the  line  of  separation 'between  the  general 
governmental  power  and  the  local  business  function  is  to  be 
drawn  is  not  yet  fully  determined.  For  illustration :  The  main- 
tenance of  a  public  road  by  the  county  is  regarded  universally 
as  the  exercise  of  a  general  governmental  power,  and  for  injuries 
resulting  in  such  maintenance,  or  in  negligent  failure  to  main- 
tain, no  liability  on  the  part  of  the  county  exists.  But  when  a 
city  is  incorporated  and  takes  charge  of  its  streets  and  highways, 
while  these  continue  to  be  public  thoroughfares,  they  are  held 
to  be  maintained  more  particularly  for  the  benefit  and  conven- 
ience of  the  inhabitants  of  the  city  than  of  the  people  of  the 
State  as  a  whole;  and  so,  for  injuries  resulting  from  their  neg- 
ligent maintenance,  the  city  is  held  responsible.  Again,  with 
reference  to  public  utilities,  such  as  water,  light  and  gas  works 
and  sewers,  the  city  is  ordinarily  held  responsible  for  tortious 
conduct  of  its  agents  or  representatives  resulting  in  injury  to 
others.  This  rule  applies  to  Common  Law  torts.  Where  conduct 
which  is  not  tortious  at  Common  Law  is  declared  to  be  tortious  by 
statute,  and  designated  persons  alone  are  declared  to  be  respons- 
ible for  such  torts,  cities  are  not  usually  held  as  included  under 
the  general  designation  of  persons,  but  if  the  legislature  desires  to 
fix  liability  upon  them  it  must  be  more  specific  and  use  apt  terms 
specially  referring  to  them. 

It  is  not  ordinarily  necessary  to  present  a  claim  to  the  city 
council  or  other  financial  board  or  representative  before  suit  is 
brought  upon  it.  If  it  be  one  upon  which  the  city  is  liable,  no 
demand  need  be  made;  if  the  city  is  not  liable,  demand  would, 
of  course,  be  useless. 

Other  Less  Organized  Subdivisions. 

In  each  State  there  are  subdivisions  of  the  counties  into  pre- 
cincts or  townships;  sometimes  into  school  districts;  and  again, 
a  county  or  number  of  counties  may  be  constituted  into  a  political 
district,  for  convenience  in  the  election  of  officers  and  in  the 
administration  of  the  law.  The  exact  powers  and  responsibilities 
of  these  several  divisions  depend  upon  the  statutes  creating  them. 
Ordinarily,  their  organization  is  very  limited  and  of  a  very  loose 
nature,  and  they  have  no  financial  responsibility,  and  but  few 
questions  have  ever  arisen  as  to  their  liability  as  legal  entities. 


MUNICIPAL   LAW  AND   ITS   SUBJECT   MATTES.  185 

The  general  statement  may  be  made  that  their  lack  of  organiza- 
tion, and  of  assets  or  means  of  raising  money,  are  practical  dif- 
ficulties in  the  way  of  enforcing  liability,  that  are  insurmountable, 
even  if  a  theoretical  liability  were  recognized  as  existing.  It  is 
exceedingly  doubtful  whether  any  such  liability  could  be  sus- 
tained theoretically.  As  stated  above,  the  extent  of  their  powers, 
rights  and  liabilities  is  dependent,  in  each  instance,  upon  the 
creating  act,  and  extends  as  far  and  no  farther  than  such  act, 
properly  construed  and  interpreted,  may  go. 

Indirect  Representatives  of  Sovereignty — Officers. 

The  liability  of  officers  for  acts  done  under  guise  of  official 
authority  has  given  rise  to  a  great  deal  of  discussion,  in  which 
widely  different  positions  have  been  taken  and  which  has  resulted 
in  adjudications  not  easily  reconciled.  It  may  be  stated,  however, 
as  a  universal  rule,  that  no  personal  liability  ever  attaches  to  an 
officer  from  the  discharge  of  his  official  duty  in  a  lawful  way. 
Whatever  the  consequences  to  others  may  be,  so  far  as  the  officer 
is  concerned,  they  must  be  borne  without  reimbursement  or  com- 
pensation; but  when  the  officer,  under  the  guise  of  official  au- 
thority, does  that  which  the  law  does  not  really  warrant  him  in 
doing,  shall  he  then  be  responsible  personally  and  make  good  to 
the  injured  party  the  damage  sustained  ?  No  answer  of  universal 
application  can  be  made.  In  some  instances,  the  officer  is  held 
responsible;  in  others,  he  is  not.  The  most  usual  statement  of 
the  line  of  demarcation  between  liability  and  nonliability  is  that 
the  ministerial  officer  is  responsible  for  mistakes  or  intentional 
wrongs  done  under  the  guise  of  his  office,  but  the  judicial  officer, 
or  the  officer  whose  duties  require  the  exercise  of  discretion,  is 
not.  Properly  understood,  this  doctrine  is  correct,  but  the  lan- 
guage, as  usually  employed,  is  somewhat  misleading.  There  are 
few,  if  any,  offices  all  of  the  duties  of  which  are  ministerial,  and 
there  are  few,  if  any,  all  of  the  duties  of  which  are  judicial,  or 
involve  official  discretion.  So  that  to  make  liability  depend  upon 
the  nature  of  the  office  can  not  be  accurate.  The  better  doctrine 
is  that  the  officer  is  liable  when  the  duty  is  ministerial,  and  not 
liable  when  the  duty  involves  official  discretion,  and  to  apply  this 
rule  to  each  official  act,  or  claimed  official  act,  under  investigation. 
This  necessarily  involves  the  determination  of  what  is  a  minis- 


186  AMERICAN   ELEMENTARY   LAW. 

terial  act  or  duty,  and  what  is  one  involving  official  discretion. 
The  answer  is  by  no  means  easy.  No  act,  private  or  official, 
which  involves  intelligence  or  reason  can  be  said  not  to  involve 
the  exercise  of  judgment,  and  in  this  sense  every  act  involves 
discretion;  and,  if  ministerial  be  the  opposite  of  discretionary, 
in  this  sense,  there  would  be  no  ministerial  action.  This  would, 
of  course,  be  to  destroy  our  basis  of  separation.  The  true  point 
of  view  seems  to  be  that,  if  the  act  involves  official  discretion,  its 
performance  or  omission  does  not  lead  to  liability,  but  that  the 
fact  that  the  act  involves  individual  or  personal  discretion  does 
not  prevent  its  being  ministerial  and  does  not  relieve  from  lia- 
bility for  mistakes  or  wrong  committed  under  guise  of  office. 
Official  discretion,  in  this  connection,  would  mean  a  discretion 
exercised  by  the  officer  as  a  representative  of  the  government. 
That  is  to  say,  the  scope  of  his  agency  or  delegated  power  in- 
cludes the  right  of  exercising  judgment  as  to  the  particular  matter 
before  him,  not  alone  for  his  guidance,  but  also  with  authority 
to  bind  others  by  such  exercise  of  judgment.  To  state  it  differ- 
ently, the  fact  that  an  officer  must  get  information,  investigate 
facts  and  weigh  them  and  exercise  judgment  as  to  what  he  shall 
do  in  his  office,  does  not  of  itself,  make  his  action  involve  official 
discretion.  All  these  duties  may  rest  upon  him  and  his  act,  when 
performed,  still  be  ministerial.  But  if  his  official  duty  requires 
the  investigation  and  determination  of  these  facts,  in  order  to 
enable  him  to  act  intelligently  in  the  discharge  of  his  office,  and 
further  authorizes  him  to  bind  other  parties  as  to  their  legal 
relations,  rights  and  duties  by  the  conclusion  arrived  at  by  him, 
then  the  act  involves  official  discretion,  and  is  not  ministerial. 
Intended  or  negligent  wrong  in  the  discharge  of  ministerial  duty 
always  leads  to  liability.  Very  frequently  a  wrong  determination 
of  fact,  made  in  good  faith  by  a  ministerial  officer,  and  acted  upon 
to  the  injury  of  another,  leads  to  liability.  Mistake  in  the  exer- 
cise of  official  discretion  rarely  leads  to  personal  liability.  In  a 
few  rare  cases,  where  the  mistake  is  of  such  nature  that  it  could 
not  reasonably  be  believed  that  a  person  fairly  qualified  to  dis- 
charge the  duties  of  the  office  would  have  made  the  mistake,  lia- 
bility will  attach. 

If  the  foregoing  views  be  correct,  it  is  immaterial  to  what  de- 
partment of  government  the  officer  belongs,  or  by  what  name  he 


MUNICIPAL   LAW  AND   ITS  SUBJECT   MATTER.  187 

may  be  called.  Still,  the  rule  as  to  liability  would  apply  much 
more  frequently  to  officers  in  the  executive  department  of  the 
government  than  to  those  in  either  the  legislative  or  judicial  de- 
partments. This  is  true  because  of  the  nature  of  the  discretion 
involved  in  the  discharge  of  the  duties  of  the  several  depart- 
ments— almost  all  legislative  and  judicial  action  involving  official 
discretion,  as  defined  above,  and  the  large  percentage  of  executive 
action  not  so  doing. 


CHAPTER  VI. 

LEGAL  RIGHTS  AND  THEIR  CLASSIFICATION. 
Definition. 

A  legal  right  is  a  power,  claim,  interest,  or  advantage  which 
one  or  more  persons  enjoy  under  the  protection  of  law,  secured  to 
him  or  them  by  the  sovereign,  by  giving  him  or  them  the  capacity 
to  control  by  law  the  conduct  of  others  with  reference  thereto. 

Every  legal  right  has  its  correlative  legal  duty  which  is  in- 
separable from  it.  The  consideration  of  the  one  necessarily  in- 
volves consideration  of  the  other. 

It  may  well  be  said  that  the  sole  end  of  private  law  is  to 
determine,  define,  and  protect  legal  rights.  No  claim  or  ad- 
vantage or  privilege  is  protected  by  law  until  its  justice,  pro- 
priety, and  value  have  first  been  recognized  by  law.  No  one  can 
be  legally  called  to  account  and  punished  for  conduct  unless  such 
conduct  invades  the  legal  right  of  another.  To  know  fully  the 
law  of  legal  rights  in  all  its  aspects  is  to  know  fully  the  law  of 
the  land.  It  is  exceedingly  important,  therefore,  to  get  a  clear 
and  thorough  understanding  of  rights  and  duties  and  to  hold  this 
information  in  the  mind  in  a  readily  available  form. 

CLASSIFICATION    OF    LEGAL    RIGHTS. 

Legal  rights  are  of  different  kinds  and  a  great  many  different 
classifications  of  them  have  been  made  by  different  writers  and 
at  different  times.  Many  of  these  are  fairly  accurate  and  com- 
prehensive but  none  are  entirely  satisfactory  as  a  basis  for  a 
simple  and  comprehensive  treatment  of  the  subject. 

So  many  classifications  have  been  made  that  one  more  will 
not  perceptibly  increase  the  confusion,  and  the  following  is  sug- 
gested : 

1.  Personal  Rights, 

2.  Civil  Rights, 

3.  Political  Rights, 

4.  Rights  against  Particular  Persons, 


LEGAL   EIGHTS  AND   THEIR   CLASSIFICATION.  189 

5.  Rights  in  Things, 

6.  Rights  in  Persons, 

7.  Remedial  Rights. 

Under  Personal  Rights,  we  will  treat  all  those  rights  which 
pertain  to  a  man's  personality  considering  him  as  a  human  social 
being. 

Under  Civil  Rights,  we  will  treat  those  rights  which  are 
guaranteed  under  the  XIV  and  XV  Amendments  to  the  Con- 
stitution of  the  United  States. 

Under  Political  Rights,  we  will  treat  all  those  rights  which 
pertain  to  a  man  as  a  member  or  subject  of  some  particular  gov- 
ernment. 

Under  Rights  against  Particular  Persons,  we  will  treat  all 
those  rights  which  are  correlative  to  duties  which  are  owed  by 
particular  individuals. 

Under  Rights  in  Things,  we  will  treat  all  those  rights  which  a 
person  may  have  in  things,  usually  known  as  property  rights. 

Under  Rights  in  Persons,  we  will  treat  all  of  those  rights  which 
one  may  have  in  the  capacities  and  personality  of  another. 

Under  Remedial  Rights,  we  will  treat  of  all  those  rights  which 
arise  upon  the  violation  of  any  right  of  any  of  the  preceding 
rights. 

PERSONAL  RIGHTS. 

These  rights  include  all  those  which  pertain  to  man  as  an  in- 
dividual, considered  as  a  human  being  simply,  and  as  a  member 
of  society  generally. 

Under  these  are  included: 

1.  Personal  security,  covering  body,  mind,  and  morals  to  the 
extent  that  the  law  affords  protection  to  each. 

2.  Freedom  of  action,  covering  also  the  three  departments  of 
man's  being,  to  the  extent  that  the  law  affords  protection  in  the 
use  of  each. 

Bodily  Security. 

The  most  obvious  right  which  a  person  has  is  to  retain  his  body 
uninjured  by  wrongful  conduct  of  others.  This  is  the  first  right 
felt  and  appreciated  by  men,  and  is  one  to  which  the  law  gives 
very  great  attention.     This  protection  is  afforded  in  two  ways: 


190  AMERICAN  ELEMENTARY  LAW. 

(1)  By  recognizing  the  interest  of  the  public  in  the  safety  and 
well-being  of  each  individual  and  making  injury  to  his  body,  with 
few  exceptions,  a  crime;  and  (2)  by  recognizing  the  right  as  a 
private  one  in  the  individual,  and  giving  redress  for  its  violation 
by  a  civil  action.  While  the  general  purpose  of  the  law  is  the 
same  in  each  instance,  the  point  of  view  is  different,  so  that  some- 
times injury  to  the  body  will  be  criminal  when  the  person  injured 
can  not  have  a  remedy ;  sometimes  it  will  be  actionable  in  behalf 
of  the  individual,  though  not  criminal ;  and  more  frequently  still, 
the  same  facts  will  lead  to  liability  both  to  the  public  and  to  the 
individual.  In  short,  the  law  undertakes  to  protect  the  body  of 
the  individual,  as  far  as  it  can  be  done  practically,  against  all 
wrongful  injury,  by  whomsoever  or  by  whatever  means  the  injury 
may  be  attempted.  The  difference  in  means  and  methods  of 
committing  these  wrongs  leads  to  different  manners  of  dealing 
with  the  wrong-doer,  and  to  different  names  for  the  offense  and 
different  penalties  or  compensations  for  the  wrong;  yet  the  law 
includes  them  all  in  its  denunciation,  and  treats  each  in  such  way 
as  to  be  most  conducive  to  the  good  of  the  individual  concerned, 
and  of  the  general  public. 

The  recognition  of  a  person's  right  in  his  body,  and  giving  him 
a  cause  of  action  for  injuries  inflicted  upon  it  wrongfully,  have 
been  part  of  the  Common  Law  from  time  immemorial.  The  right 
is  necessarily  personal,  and  the  injury  to  it  of  the  same  nature. 
The  Common  Law,  stressing  this  idea  of  the  personal  nature  of 
the  right  and  the  injury,  did  not  recognize  a  claim  for  damages 
for  its  violation,  as  either  assignable  or  heritable.  Such  claim 
died  with  the  death  of  the  injured  party.  The  wrong  conduct 
resulting  in  the  injury  was  also  regarded  as  strictly  personal, 
and  the  claim  for  damages  against  the  wrong-doer  did  not  survive 
his  death.  So  at  Common  Law,  the  death  of  the  injured  party, 
or  of  the  wrong-doer,  before  the  claim  for  damage  had  been 
reduced  to  judgment,  destroyed  the  claim;  if  suit  had  already 
been  brought,  but  had  not  proceeded  to  judgment  before  such 
death,  it  abated.  If  no  suit  had  been  brought  before  such  death, 
none  could  be  thereafter  instituted.  These  Common  Law  rules 
have  been  changed,  to  some  extent,  in  most  of  the  States,  if  not 
all ;  the  extent  and  nature  of  the  changes  varying  with  the  judg- 
ment of  the  several  legislatures. 


LEGAL   RIGHTS  AND   THEIR   CLASSIFICATION.  191 

Homicide,  while  severely  punished  criminally,  was  not  a  tort 
at  Common  Law.  Clearly  the  injured  party  could  maintain  no 
suit,  and  the  law  did  not  recognize  any  cause  of  action  as  sur- 
viving in  his  estate,  as  such,  or  in  any  of  the  members  of  his 
family.  In  1846,  the  British  Parliament  passed  a  statute,  known 
as  Lord  Campbell's  Act,  giving  a  right  to  designated  relatives  of 
the  deceased  to  sue  the  wrong-doer  and  recover  damages  when 
homicide  had  been  committed  under  specified  circumstances. 
Since  that  time,  almost  all  the  American  States  have  passed 
statutes  to  the  same  effect.  These  statutory  rights  pertain  to 
the  designated  surviving  members  of  the  family  of  the  deceased, 
and  will  be  dealt  with  under  the  fifth  classification  of  rights. 

Use  of  Force. 

We  may  summarize  the  rules  of  law  for  the  protection  of  the 
body  as  follows : 

The  general  rule  is  that  the  use  of  any  force  by  one  person 
upon  the  body  of  another  is  unlawful.  To  this,  there  are  five 
exceptions : 

(1)  "When  the  force  is  applied  in  obedience  to  the  command 
of  the  law,  as  an  officer  in  arresting  a  person  charged  with  crime 
for  whom  he  has  a  warrant,  or  to  prevent  a  public  disturbance 
or  breach  of  the  peace. 

(2)  "When  applied  in  proper  self-defense. 

(3)  "When  the  act  is  committed  reasonably  in  the  proper  con- 
trol of  one  subject  to  some  special  relation,  as  the  moderate  cor- 
rection of  the  child  by  the  parent,  or  of  the  pupil  by  the  teacher. 

(4)  "When  occurring  under  the  license  of  the  law  for  reasons 
of  public  policy,  as  in  the  ordinary  contacts  of  life. 

(5)  "When  it  is  a  result  of  inevitable  accident. 

Security  to  the  Mind. 

Hurt  to  the  mind  is  of  two  general  kinds,  the  first  involving 
mental  impairment  which  may  consist  of  the  destruction  or  weak- 
ening of  the  mental  faculties,  and  the  second  involving  only  men- 
tal pain  or  suffering  without  impairment  of  faculties. 

These  injuries  may  be  occasioned  in  an  almost  infinite  variety 
of  ways.  For  legal  purposes  they  may  be  divided  into  hurts 
resulting  from  or  accompanied  by  physical  injury  on  the  one 
hand,  and  hurts  unaccompanied  by  physical  injury  on  the  other. 


192  AMERICAN  ELEMENTARY   LAW. 

We  may  therefore  divide  mental  injuries  into  four  groups: 

(1)  Those  involving  impairment  of  the  faculties  resulting  from 
or  accompanied  by  physical  hurt. 

(2)  Those  involving  mental  pain  and  suffering  merely,  not 
extending  to  impairment  of  faculties,  and  resulting  from  or  ac- 
companied by  physical  hurt. 

(3)  Those  involving  impairment  of  the  faculties  not  resulting 
from  nor  accompanied  by  physical  hurt. 

(4)  Those  involving  mental  pain  and  suffering  merely,  not 
extending  to  impairment  of  faculties  and  not  resulting  from  nor 
accompanied  by  physical  hurt. 

The  law  on  the  subject  of  mental  security  is  not  definitely  set- 
tled. The  law  took  cognizance  of  and  undertook  to  protect  the 
body  before  it  did  the  mind.  In  the  earlier  cases  involving  mental 
injury  the  question  arose  in  connection  with  bodily  hurt,  usually 
being  presented  as  to  whether  or  not  damage  for  mental  hurt 
could  be  recovered  in  connection  with  damage  for  hurt  to  the 
body.  It  was  only  in  later  years  that  protection  of  the  mind 
against  hurts  not  resulting  from  bodily  injury  arose. 

The  present  rules  may  be  fairly  stated  as  follows: 

(1)  The  law  does  recognize  a  person's  right  in  and  to  his  mind 
and  undertakes  to  protect  him  against  mental  injury  as  far  as 
this  can  be  done  practically. 

(2)  The  law  uniformly  gives  redress  for  wrongs  which  injure 
the  body  and  also  injure  the  mind,  either  by  impairment  of  the 
faculties  or  simply  by  occasioning  mental  pain  and  suffering 
though  not  extending  to  impairment  of  faculties. 

(3)  It  also  gives  redress  for  impairment  of  faculties  where 
this  can  be  satisfactorily  shown  although  there  be  no  accompany- 
ing physical  hurt. 

(4)  There  is  much  uncertainty  as  to  the  rules  governing  cases 
involving  mental  pain  and  suffering  unaccompanied  by  physical 
hurt.  Much  authority  can  be  found  on  both  sides  of  the  question. 
The  cases  allowing  damage  for  mental  suffering  under  these  cir- 
cumstances contend  that  the  law  in  allowing  damage  for  such 
suffering  when  accompanied  by  bodily  hurt,  recognizes  this  as 
a  legal  element  of  damage  susceptible  of  being  measured  and 
expressed  in  terms  of  money,  and  this  being  so,  the  party  who 
has  sustained  such  damage  by  the  wrong  of  another  is  justly  en- 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  193 

titled  to  redress.  The  cases  denying  such  recovery  contend  that 
though  mental  anguish  when  properly  established,  is  a  just  ele- 
ment of  damage,  proof  of  it  is  so  difficult  to  make  and  the  op- 
portunities for  simulation  and  fraud  are  so  great,  that  to  permit 
recovery  in  cases  where  no  bodily  hurt  can  be  shown  would  open 
too  wide  the  door  for  fraud  and  vexatious  litigation.  These 
courts  further  urge  that  the  difficulty  in  showing  causal  connec- 
tion between  the  act  complained  of  and  the  mental  hurt  is  very 
great  where  there  is  no  physical  injury.  This  difference  of  opin- 
ion makes  it  quite  difficult  to  state  satisfactorily  the  rules  of  law 
applicable  to  such  cases. 

The  results  may  be  approximately  summarized  as  follows: 
Compensation  for  mental  suffering  not  produced  by  nor  accom- 
panied by  physical  injury,  is  not  ordinarily  allowed.  Such  com- 
pensation is  allowed  in  cases  where  the  wrong  producing  it  was 
intentionally  committed,  and  also  in  cases  where,  by  reason  of 
some  special  relation  between  the  parties,  or  other  special  facts, 
the  mental  suffering  should  have  been  anticipated  as  the  natural 
and  probable  result  of  the  wrong. 

Security  to  Morals. 

To  afford  protection  to  a  man's  moral  nature  is  even  more 
difficult  and  impracticable  than  to  his  mind.  The  result  is  that 
the  law  does  not  undertake  to  give  damages  or  compensation  to 
a  person  because  another  has  caused  his  morals  to  deteriorate. 
The  subject  is  too  intangible  and  causal  connection  too  hard  to 
trace,  the  doctrine  of  contributory  negligence  too  generally  ap- 
plicable, and  the  just  measurement  of  the  injury  in  dollars  and 
cents  too  uncertain.  So  that  no  protection  to  the  morals  of  the 
individual,  by  giving  him  money  for  their  impairment,  is  pro- 
vided. This  does  not  mean  that  the  law  does  not  recognize  man 's 
moral  nature,  nor  undertake  to  afford  some  protection  to  it. 
"When  the  practices  or  conduct  complained  of  are  continuous  in 
their  nature  and  their  consequences  clearly  demonstrable,  and 
the  complainant  is  in  no  wise  implicated  in  the  wrong,  it  may 
sometimes  be  prevented  by  dealing  with  it  as  a  nuisance.  Be- 
sides, a  number  of  criminal  laws  are  designed  to  punish  and 
prevent  immoral  practices. 

It  is  readily  perceived  that  the  law,  as  to  the  matters  considered 
iii  this  and  the  last  preceding  paragraph,  is  not  settled,  but  is 
13 


194  AMERICAN  ELEMENTARY  LAW. 

still  in  the  formative  state.  What  the  ultimate  result  may  be, 
no  one  can  tell.  In  no  branch  of  the  law  does  the  idea  of  im- 
practicability of  dealing  efficiently  with  the  proposed  matter 
afford  more  difficulty  or  emphasize  more  clearly  the  necessity  of 
separating  municipal  law  from  moral.  The  difficulties  are  not 
easy  to  overcome,  and  will  be  solved  only  by  repeated  experiment 
and  honest  effort 

Freedom  of  Action. 

This  right,  as  it  would  exist  in  a  person  in  a  state  of  nature, 
is  necessarily  modified  by  membership  in  any  society  or  govern- 
ment It  is  in  this  modified  form  that  we  deal  with  it  here.  It 
is  a  very  general  and  indispensable  right.  Its  extent  is  to  do 
any  and  everything  one  may  desire,  except  such  things  as  may 
be  violative  of  the  just  rights  of  others.  It  covers  the  privilege 
to  go  where  one  pleases,  do  anything  he  wishes,  engage  in  any 
business  he  sees  fit ;  in  short,  to  conduct  himself  at  all  times  and 
at  all  places  as  he  may  desire,  unless  he  shall  thereby  invade  the 
just  rights  of  others.  The  law  should  abridge  these  rights  and 
interfere  with  their  exercise  only  so  far  as  the  public  good  and 
equality  in  rights  of  individuals  may  demand.  These  two  con- 
siderations, however,  necessitate  very  material  and  continuous 
limitations  upon  the  freedom  of  action  of  the  individual.  The 
recognition  of  every  person 's  right  of  bodily  security  is  a  limita- 
tion on  every  other  person's  actions  with  regard  thereto.  A  rec- 
ognition of  property  rights  necessarily  excludes  all  persons  except 
the  owner  from  equal  use  and  enjoyment  with  the  owner  in  the 
thing  owned.  So,  throughout  the  whole  catalogue  of  private 
rights,  as  each  is  secured  to  its  possessor  by  capacity  to  control 
by  law  the  conduct  of  others,  its  enjoyment  necessarily  involves 
a  proportionate  loss  of  self-determination  by  others.  The  just 
and  proper  balancing  and  adjustment  of  these  rights  and  limi- 
tations is  one  of  the  most  delicate  and  difficult  duties  of  sover- 
eignty. The  result,  when  it  shall  have  been  successfully  attained, 
will  be  the  perfection  of  civil  liberty. 

Any  interference  by  one  person  with  the  freedom  of  action  of 
another  is  wrongful,  unless  authorized  by  law ;  that  is,  the  rules 
governing  the  conduct  of  individuals  in  these  respects,  as  in  all 
others,  are  made  by  the  sovereign  and  not  by  private  individuals, 
and  each  person  is  equally  permitted  to  carry  out  his  own  designs 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  VJo 

and  purposes  uncontrolled  and  uninterfered  with,  except  as  the 
law  may  prescribe. 

This  right  of  freedom  from  restraint,  except  as  authorized  by 
law,  is  protected  by  both  criminal  and  civil  law,  and  invasions 
of  it,  usually  called  false  imprisonment,  are  punishable  as  crimes 
and  subject  to  civil  liability  to  the  injured  party. 

In  addition  to  the  criminal  penalties  and  liability  to  damage 
in  civil  suits,  so  jealous  is  the  law  that  it  has  provided,  in  behalf 
of  the  persons  restrained  of  their  liberty,  a  special  remedy  of 
habeas  corpus.  This  is  a  command  issued  by  a  court  or  judge, 
upon  the  appication  of  the  person  detained,  or  of  some  one  in  his 
behalf,  or  upon  the  motion  of  the  judge  himself,  if  he  believe  just 
cause  for  so  doing  exists,  commanding  the  person,  whether  officer 
or  private  citizen,  who  has  another  in  his  possession  and  custody, 
to  produce  or  bring  such  person  before  said  court  or  judge,  or 
some  other  court  or  judge  having  jurisdiction,  at  a  time  and  place 
named  in  the  writ,  then  and  there  to  show  cause  why  such  person 
should  not  be  set  at  liberty.  This  is  an  ancient  and  most  highly 
prized  writ  and  is  one  of  the  most  effective  safeguards  of  our 
liberty.  By  it  any  one  who  is  unlawfully  detained  may  invoke 
the  power  of  the  government  in  his  behalf  and  have  his  detention 
and  its  legality  inquired  into  and  if  it  be  unlawful  secure  his  re- 
lease. So  greatly  was  this  remedy  prized  by  the  English  people 
that  its  continuance  and  uninterrupted  use  were  among  the 
guarantees  which  they  compelled  the  King  to  give  in  written 
charter.  It  is  equally  esteemed  in  America.  Article  I,  Section  9, 
Clause  2,  of  the  Constitution  of  the  United  States  declares:  "The 
Privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  invasion  or  rebellion,  < the  public  safety 
may  require  it."  Similar  guarantees  are  contained  in  most,  if 
not  in  all,  of  the  State  constitutions.  Some  of  the  State  con- 
stitutions go  even  further  and  declare  that  the  writ  of  habeas 
corpus  is  a  legal  right  and  should  never  be  suspended. 

A  large  part  of  those  portions  of  State  Constitutions  usually 
designated  as  bills  of  Rights  are  guarantees  of  personal  freedom 
of  action  intended  to  protect  the  citizen  in  his  liberty. 

These  guarantees  are  not  identical  in  phraseology  nor  even  in 
scope  in  all  the  constitutions,  but  their  real  spirit  and  substance 
is  largely  the  same.     Among  the  most  frequent  are  provisions 


196  AMERICAN   ELEMENTARY   LAW. 

against  unreasonable  seizure  and  search;  to  secure  the  privilege 
of  bail  in  reasonable  amount;  to  insure  a  speedy  and  public  trial 
by  an  impartial  jury;  to  entitle  a  person  accused  of  crime  to  full 
information  as  to  the  nature  of  the  charge  against  him ;  to  guar- 
antee against  testifying  against  himself  in  criminal  cases;  to 
guarantee  the  right  of  being  heard  by  himself  or  counsel  in 
every  trial  to  which  he  is  a  party;  to  be  confronted  with  wit- 
nesses against  him ;  and  forbidding  that  he  shall  twice  be  put  in 
jeopardy  for  the  same  offense  or  tried  again  for  the  same  offense 
after  a  verdict  of  not  guilty. 


CHAPTER  VIL 

LEGAL  RIGHTS  AND  THEIR  CLASSIFICATION   (CONTD.) 

PERSON AL  RIGHTS   ( CONTD.). 

THE  RIGHT  TO  CONTRACT. 

The  right  to  contract  as  well  as  a  number  of  the  rights  dealt 
with  in  the  paragraphs  immediately  succeeding  this  may  well  be 
included  under  the  preceding  head  of  Freedom  of  Action  but 
these  special  kinds  of  action  are  so  important  that  it  is  better  to 
deal  with  them  under  separate  headings. 

The  right  to  contract  is  the  right  to  create,  modify  or  destroy 
legal  rights  by  executory  agreement  of  parties.  It  is  apparent 
that  this  right  is  very  important  and  its  exercise  far-reaching. 
In  recognition  of  these  facts  the  law  limits  this  right  in  many 
ways.  In  the  first  place  it  is  quite  careful  to  determine  and 
define  what  agreement  is,  and  in  the  second  place,  it  is  equally 
careful  in  determining  what  characteristics  agreement  must  have 
before  the  law  will  undertake  to  recognize  it  as  affecting  legal 
rights. 

Agreement. 

Agreement  is  the  real  meeting  of  the  minds  of  two  or  more 
parties.  It  involves  two  elements :  first,  a  common  understanding 
and  second,  a  concurrence  of  the  wills  of  the  parties.  That  is, 
the  parties  to  an  agreement  must  understand  the  matter  alike 
in  all  its  material  features,  and,  so  understanding  it,  must  have 
the  same  will  concerning  it.  Absence  of  either  of  these  elements 
prevents  agreement.  It  is  for  this  reason  that  mutual  mistake 
or  duress  prevents  agreement  and  that  fraud  vitiates  it.  Mutual 
mistake  prevents  agreement  because  the  minds  of  the  parties  are 
dealing  with  different  subject  matter  and  their  understandings 
do  not  meet.  Duress  prevents  agreement  because,  though  the 
understandings  meet,  there  is  no  mutual  concurrence  of  will. 
Fraud  vitiates  agreement  because  there  is  no  real  meeting  of 


198  AMERICAN   ELEMENTARY   LAW. 

the  minds  on  the  basis  of  truth  but  only  a  supposed  or  fictitious 
meeting  of  the  minds  on  the  basis  of  the  fraudulent  misrepre- 
sentation. 

These  matters  may  be  made  plainer  by  example.  If  A  and  B 
attempt  to  enter  into  an  agreement  regarding  the  sale  of  a  piece 
of  land,  have  the  same  tract  in  mind,  inspect  it  together,  discuss 
the  terms  cf  the  sale,  have  a  common  understanding  concerning 
all  these  matters  and  then  have  the  same  will  regarding  it,  that 
is,  A  wills  to  sell  the  particular  tract  of  land  on  the  designated 
terms  to  B,  and  B  wills  to  buy  the  particular  tract  of  land  on 
those  terms  from  A,  and  this  common  understanding  and  will  are 
declared  between  them,  there  is  agreement. 

If  A  and  B  attempt  to  enter  into  an  agreement  regarding  the 
sale  of  a  piece  of  land,  but  A  has  one  tract  in  his  mind  and  B 
has  another  in  his,  there  is  no  meeting  of  the  minds  on  a  common 
subject  matter  and  no  agreement.  This  transaction  could  not 
effect  a  sale  of  the  land  or  a  change  of  legal  rights.  It  is  not 
a  sale  of  the  tract  which  A  thought  he  had  sold  because  B  never 
agreed  to  buy  that.  It  is  not  a  sale  of  the  tract  which  B  thought 
he  had  bought  because  A  had  never  agreed  to  sell  that.  The 
transaction  would  be  mutual  mistake  and  not  an  agreement. 

If  A  has  a  tract  of  land  and  B  is  anxious  to  acquire  it  and  goes 
to  A  with  a  deed  ready  for  signature,  reads  the  deed  over  to  A. 
explains  it  to  him,  and  offers  him  five  hundred  dollars  in  cash 
for  the  land,  and  A  refuses  this,  and  B  presents  a  pistol  toward 
A  and  compels  him  to  sign  the  deed,  takes  the  deed  and  leaves 
the  five  hundred  dollars,  this  would  not  be  an  agreement.  A  and 
B  understood  the  transaction  alike.  There  is  no  mistake  about 
the  matter,  but  A's  will  did  not  act  voluntarily  in  signing  the 
deed.  He  was  compelled  to  do  so  in  order  to  save  his  life.  There 
is  no  mutuality  of  will,  hence  no  agreement.  It  is  a  case  of 
duress. 

A  has  a  tract  of  land  which  he  desires  to  sell  and  which  he 
knows  to  be  barren  and  worthless.  B  desires  to  buy  a  tract  of 
land  for  fanning  purposes.  A  designedly  misrepresents  the  tract 
which  he  owns  and  states  to  B  that  it  is  fine  farming  land,  in 
a  good  state  of  cultivation,  yielding  large  crops.  B,  being  un- 
acquainted with  the  land,  believes  A's  statements  regarding  it 
and  is  so  induced  to  buy  it  and  does  buy  it.    This  would  be  a  clear 


LEGAL   BIGHTS  AND   THEIR   CLASSIFICATION.  199 

case  of  fraud.  It  is  not  a  case  of  mutual  mistake  for  A  knew 
the  exact  truth  about  the  land  all  the  while.  It  is  not  a  case  of 
duress  for  A  has  not  used  force  or  threats  to  overcome  B's  will. 
It  is  not  a  case  of  true  agreement  because  B  did  not  agree  to  buy 
the  tract  of  land  as  it  really  was,  but  to  buy  a  tract  having  the 
qualities  falsely  attributed  to  A 's  tract  by  A.  The  assent  of  B  's 
mind  was  not  given  to  the  purchase  of  the  real  tract  but  of  the 
non-existent  tract  which  A  described.  The  law  deals  with  this 
anomalous  situation  by  declaring  that  the  transaction  will  bind 
A,  if  B  so  desires,  but  will  not  bind  B  if  he  desires  to  be  re- 
lieved. 

Essentials  of  Contract. 

The  foregoing  gives  the  idea  of  agreement.  The  next  inquiry 
arising  is,  does  the  law  recognize  and  undertake  to  enforce  all 
agreements,  or  does  it  limit  its  recognition  to  those  having  certain 
characteristics  or  elements  ?  The  answer  is  that  the  law  is  quite 
careful  regarding  the  creation,  modification,  and  destruction  of 
legal  rights  by  agreement  of  parties  and  requires  that  every 
agreement,  to  be  enforceable  at  law,  must  have  certain  character- 
istics. 
.  These  characteristics  are: 

1.  Legally  competent  parties, 

2.  Legality  of  purpose, 

3.  Consideration, 

4.  Proper  form. 

A  true  agreement  having  each  of  the  four  foregoing  elements 
is  legally  enforceable  and  is  properly  called  a  contract.  It  is  a 
very  general  rule  that  agreements  still  unperformed,  which  lack 
any  one  or  more  of  these  characteristics,  will  not  be  enforced 
either  by  compelling  the  parties  to  fulfill  the  promise  or  by  allow- 
ing damages  for  refusal  to  do  so. 

Parties. — Agreement  necessarily  implies  at  least  two  parties. 
The  general  rule  is  that  every  person  is  legally  competent  to  enter 
into  binding  agreements.  And  the  parties  undertaking  to  make 
an  agreement  are  presumed  by  law  to  be  competent  until  proven 
otherwise. 

The  persons  who  have  not  the  power  to  contract,  or  rather  whose 
power  to  contract  is  specially  limited,  are  insane  persons,  drunken 


200  AMERICAN   ELEMENTARY   LAW. 

persons,  minors,  and  married  women.  These  limitations  are  not 
imposed  by  way  of  reflection  or  penalty  but  as  a  means  of  pro- 
tection against  improvident  impulses  of  the  parties  themselves 
or  undue  influence  of  others.  It  follows  that  the  limitations  are 
enforced  in  those  classes  of  cases  in  which  the  real  interest  of 
the  abnormal  party  is  subserved  by  recognizing  the  power  to 
bind  himself,  hence  we  find  that  agreements  of  insane  and 
drunken  persons  and  of  minors  for  purchase  of  necessaries  are 
sustained.  The  same  considerations  do  not  apply  with  equal 
force  in  the  case  of  married  women,  as  they  are  permitted  by 
law  to  obtain  necessaries  on  the  credit  of  their  husbands.  Still 
in  many  states  a  married  woman  can  bind  her  separate  property 
for  necessaries,  even  though  her  Common  Law  disabilities  have 
not  been  removed  in  other  respects. 

Purpose. 

Of  course,  the  law  can  not  undertake  to  uphold  any  person 
in  its  own  violation,  and  therefore  it  can  not  recognize  or  attempt 
to  enforce  any  agreement  which  has  a  direct  unlawful  purpose. 
There  are  some  very  nice  questions  as  to  just  how  closely  con- 
nected the  agreement  must  be  with  the  proposed  violation  of  the 
law  to  render  it  unenforcible.  It  seems  to  be  clear  that,  whenever 
the  purpose  is  to  violate  the  law,  and  this  intent  is  common  to 
both  parties,  the  agreement  is  unenforcible.  If  the  purpose  be  to 
commit  a  heinous  offense,  and  this  is  entertained  by  one  person 
and  known  to  the  other,  the  result  is  the  same.  If,  however,  one 
has  an  unlawful  purpose,  unknown  to  the  other,  it  will  not  avoid 
the  agreement  to  the  injury  of  the  innocent  party.  If  the  pur- 
pose be  not  heinous,  but  be  to  break  some  statutory  provision  not 
involving  moral  turpitude,  if  it  be  known  to  but  not  acquiesced 
in  by  the  other  party,  the  result  is  unsettled,  in  our  law.  The 
foregoing  statements  are  general,  and  apply  alike  to  all  cases  of 
contracts,  except  in  a  few  of  those  which  are  merely  mala  pro- 
hibita  and  as  to  which  the  legislature  did  not  intend  to  affect  the 
enforcibility  of  the  agreement  by  prohibiting  it.  These  cases  are 
extremely  rare,  but  do  sometimes  arise. 

It  may  be  well  to  consider  agreements  forbidden  by  statute 
more  in  detail. 

In  these  cases  the  effect  upon  the  agreements,  and  on  the  rights 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  201 

and  liabilities  of  the  parties  under  it,  is  exclusively  one  of  legis- 
lative intent.  "Whatever  the  intent'  may  be,  the  courts  must  en- 
force it.     These  agreements  may  be  placed  in  five  groups : 

Group  1 :  Agreements  expressly  prohibited  by  law,  with  express 
penalty  of  nullity.  Here  there  can  hardly  be  said  to  be  any  room 
for  construction.  The  law  says  the  attempted  agreement  is  void 
and  can  not  be  enforced,  and  that  ends  the  matter. 

Group  2:  Agreements  expressly  prohibited,  with  a  criminal 
penalty,  but  nothing  said  as  to  consequences  civilly.  Here,  as  I 
understand,  the  courts  apply  the  rule  that  no  cause  of  action  can 
arise  from  a  violation  of  the  criminal  law,  in  behalf  of  the  wrong- 
doer. And  as  both  parties  to  the  agreement  are  wrong-doers,  the 
attempted  contract  is  unenforcible. 

Group  3 :  Agreements  forbidden  by  statute,  no  penalty,  civil  or 
criminal,  being  denounced.  These  are  put  on  the  same  footing  as 
the  preceding  classes.  The  effort  to  enter  into  the  forbidden 
agreement  being  itself  unlawful,  no  cause  of  action  arises  from 
it.  There  is  some  conflict  in  the  cases,  but  I  think  that  this  rule 
is  sustained  by  the  weight  of  authorities. 

Group  4.  Agreements  prohibited  expressly,  but  where  the  whole 
act,  taken  together,  shows  that  the  legislature  did  not  design  that 
the  agreement  should  be  void.  Here,  as  in  other  cases,  the  legis- 
lative intent  is  respected  and  the  contract  is  declared  not  to  be 
void,  but  the  penalty  contemplated  by  the  legislature  is  imposed 
upon  the  party  or  parties. 

Group  5 :  Contracts  expressly  prohibited,  with  an  express  pen- 
alty prescribed  by  the  act,  which  is  not  nullity,  but  which  is  for 
the  benefit  of  certain  persons.  In  such  cases  the  contract  will 
be  enforcible  in  favor,  of,  but  not  against,  the  person  in  whose 
favor  the  penalty  is  provided. 

Consideration.  » 

To  support  an  unexecuted  promise  at  Common  Law,  there  must 
be  some  consideration.  This  is  something  of  value,  in  the  eye  of  the 
law,  moving  from  one  party  to  the  other,  either  for  the  benefit 
of  the  promisor  or  to  the  detriment  of  the  promisee.  It  is  not 
the  same  as  motive.  Motive  may  be  ex  parte,  or  unilateral.  Con- 
sideration is  something  in  the  minds  of  both  parties,  which  both 
recognize  as  inducement  to  the  promise.     (Bouvier's  Law  Die- 


202  AMERICAN   ELEMENTARY   LAW. 

tionary,  "Consideration.")  It  may  take  many  forms,  but  must 
always  be  present  in  some  form  in  an  enforcible  agreement.  It 
need  not  be  in  such  proportion  to  the  thing  promised  as  to  be 
adequate,  though  inadequacy  may  be  considered,  in  connection 
with  other  evidence,  as  indicating  fraud,  or  undue  influence,  or 
unconscientious  advantage. 

At  Common  Law  instruments  under  seal  are  said  to  import 
consideration.  Whether  this  means  that  the  seal  is  a  substitute 
for  consideration  and  so  dispenses  with  consideration  in  fact,  or 
is  presumptive  evidence  of  consideration  and  hence  only  relieves 
from  the  necessity  of  pleading  and  proving  it,  is  an  unsettled 
matter.  Whichever  view  be  taken  a  contract  under  seal  can  be 
enforced  at  Common  Law  without  the  necessity  of  either  plead- 
ing or  proving  that  it  was  based  upon  or  supported  by  consid- 
eration. 

At  Common  Law  written  agreements  not  under  seal  and  verbal 
agreements  do  not  import  consideration  and  will  not  be  enforced 
unless  consideration  in  fact  exists. 

The  Civil  Law  and  the  Law  Merchant  did  not  regard  con- 
sideration as  essential  to  the  obligation  of  agreement.  The  pres- 
ent rules  of  the  Law  Merchant  recognize  it  as  essential,  but  pre- 
sume it  to  exist  in  all  negotiable  contracts.  This  presumption 
is  prima  facie  only  as  between  the  original  parties,  or  others  hav- 
ing notice,  but  is  conclusive  in  behalf  of  innocent  purchasers  of 
paper  before  maturity,  for  value,  without  notice.  If  any  one  of 
these  facts  is  wanting,  the  consideration  may  still  be  inquired  into. 

Form. 

Form  of  some  kind  is  essential  to  contract.  This  is  but  another 
way  of  saying  that  the  assent  of  the  parties  to  the  agreement  must 
be  manifested  and  evidenced  in  some  way  before  the  law  can  take 
cognizance  of  it  and  enforce  it.  In  the  great  majority  of  in- 
stances the  agreement  is  evidenced  by  spoken  words,  and  fre- 
quently words  and  acts  are  sufficient  and,  in  rare  instances,  acts 
unaccompanied  by  words  may  be  taken  as  sufficiently  indicative 
of  assent. 

In  certain  classes  of  contracts  coming  under  what  is  usually 
denominated  the  Statute  of  Frauds,  form  is  emphasized  to  such 
extent  that  the  law  requires  the  agreement  to  be  reduced  to 


LEGAL   BIGHTS   AND   THEIR   CLASSIFICATION.  203 

writing  and  signed  by  the  parties.     In  some  agreements  the  law 
goes  beyond  this  and  requires  that  the  writing  be  sealed. 

Whatever  may  be  the  requirements  of  the  law  as  to  the  form 
of  any  particular  agreement  these  requirements  must  be  com- 
plied with  or  the  agreement  will  be  non-enforceable.  This  gen- 
eral rule  is  subject  to  a  few  exceptions  which  need  not  be  con- 
sidered at  this  time. 

The  Bight  to  Acquire,  Hold  and  Dispose  of  Property. 

This  is  an  important  right,  which  pertains  to  individuals  as 
members  of  society.  It  must  be  carefully  distinguished  from 
the  actual  ownership  of  some  particular  thing,  which  would  be 
classed  under  the  fourth  general  heading  of  rights  in  things. 
The  matter  now  under  consideration  is  the  general  capacity, 
which  a  person  has  in  law,  to  acquire  and  hold  property.  The 
right  exists  in  all  normal  persons,  and  may  be  exercised  by  them, 
in  conformity  with  the  law,  as  often  and  to  as  great  an  extent  as 
they  may  be  severally  able.  Property  can  only  be  acquired  by 
lawful  means,  used  for  lawful  purposes,  and  disposed  of  in  lawful 
ways;  but,  within  these  legal  limits  there  is  no  restriction  upon 
the  amount  of  property  that  any  one  individual  or  number  of 
individuals  may  acquire  and  hold. 

Perhaps  the  distinction  between  the  personal  right  now  under 
consideration,  that  is,  the  general  right  to  acquire  and  hold  prop- 
erty, on  the  one  hand,  and  the  right  in  a  particular  thing  which 
the  owner  has  already  acquired  and  is  now  holding,  on  the  other 
hand,  may  be  plainer  by  illustration :  Suppose  an  auction  is  being 
held.  Any  one  has  a  right  to  bid  for  the  property  on  sale.  A 
particular  thing  is  offered,  and  a  number  of  persons  bid  for  it. 
As  each  one  makes  his  bid,  he  therein  exercises  his  right  to  acquire 
property,  and  if  the  article  be  struck  off  to  him,  this  specific  thing 
will  become  his.  He  does  not,  by  thus  exercising  his  authority 
to  acquire  property  and  buying  a  particular  thing  exhaust  it; 
and,  if  another  article  is  put  up  and  he  desires  it,  he  still  has 
capacity  as  a  buyer,  and  if  he  bids  and  that  article  is  struck  off 
to  him,  he  will  own  that  also.  In  each  case,  by  the  exercise  of 
his  general  capacity  to  buy,  he  has  acquired  actual  ownership 
over  a  specific  thing,  and  has  rights  in  that  thing  and  can  control 
the  conduct  of  others  with   reference  to  it.     Suppose,   in  the 


204  AMERICAN   ELEMENTARY   LAW. 

progress  of  the  auction,  some  one  shall  falsely  and  maliciously 
state  to  the  auctioneer  that  the  bidder  is  insane  or  insolvent,  and 
thus  induce  the  auctioneer  to  refuse  his  bid,  although  it  is  the 
highest;  this  unlawful  interference  with  the  general  right  to 
acquire  property,  existing  in  the  bidder,  would  prevent  the  vest- 
ing in  him  of  the  ownership  of  the  thing  bid  for,  and  he  would 
not  acquire  any  right  in  it ;  still,  he  would  have  a  cause  of  action 
against  the  unlawful  intermeddler  for  interfering  with  his  right 
to  buy.  This  right  to  buy  is  the  matter  now  under  consideration, 
and  is  a  personal  right. 

The  second  phase  of  this  right  is  the  capacity  to  hold  property 
It  is  one  of  the  most  important  among  the  personal  rights.  It  is 
so  closely  connected  with  the  owner's  rights  in  the  property  held 
that  it  need  not  be  discussed  at  this  time,  except  to  say  that  it 
is  practically  without  legal  limitation,  save  in  the  case  of  cor- 
porations and  aliens,  who  are  each  often  limited  as  to  the  quantity 
of  real  estate  which  they  may  own,  and  the  length  of  time  they 
may  hold  it. 

The  right  to  convey  property  is  also  an  important  one.  This, 
also,  is  subject  to  legislative  control  so  far  as  the  public  good  may 
require.  If  dealing  in  any  particular  article  or  commodity  is 
contrary  to  the  general  good  by  affecting  injuriously  either  the 
safety,  health  or  morals  of  the  people,  such  dealings  may  be  either 
prohibited  or  regulated,  as  the  best  interests  of  the  public  may 
demand.  "When  such  course  of  dealing  is  continuous  or  exten- 
sive, it  would  be  regarded  as  the  conduct  of  a  business,  and  would 
come  under  the  next  paragraph ;  but  even  the  single  act  involved 
in  a  single  disposition  may  be  prohibited  or  regulated. 

Right  to  Carry  on  Business. 

This  right  is  rather  a  combination  or  outgrowth  of  the  two 
just  discussed — the  right  to  contract  and  to  acquire,  hold  and 
dispose  of  property;  but  as  it  is  often  practically  presented  as 
a  right  to  follow  a  certain  occupation  or  prosecute  a  certain  busi- 
ness enterprise,  it  needs  some  consideration.  Every  individual 
has  an  unquestioned  right  to  occupy  his  time,  means  and  capacity 
in  any  way  that  he  sees  fit,  so  long  as  he  does  not  unduly  interfere 
with  the  just  and  legal  rights  of  other  individuals,  or  the  com- 
munity at  large.  But,  whenever  such  interference  begins,  his 
right  ceases.     It  is,  therefore,  one  of  the  unquestioned  preroga- 


LEGAL.   RIGHTS   AND   THEIR   CLASSIFICATION.  205 

tives  of  the  State  to  provide  special  regulations  for,  or  wholly  to 
prohibit,  such  occupations  and  engagements  as  interfere,  in  a 
way  that  can  be  practically  appreciated,  with  the  safety,  health 
or  morals  of  the  community.  This  right  has  been  exercised,  from 
time  immemorial,  by  all  civilized  governments ;  and,  as  civilization 
advances  and  public  opinion  becomes  better  informed  and  estab- 
lishes higher  standards  as  to  health  and  safety,  the  exercise  of 
the  right  by  the  government  is  proportionately  extended. 

A  Right  to  Form  Special  Relations. 

This  right  is  closely  allied  to,  yet  somewhat  different  from, 
those  which  we  have  just  been  considering.  It  is  an  extensive 
and  practically  valuable  right.  Under  it  fall  the  right  to  form 
family  relations  and  other  social  connections  and  combinations. 
Its  exercise  is  regulated  largely  by  social  sanctions  and  public 
opinion.  It  is  not,  however,  beyond  the  control  of  governmental 
agencies,  as  we  see  in  the  statutes  forbidding  marriage  between 
persons  within  certain  degrees  of  kinship  or  belonging  to  different 
designated  races,  and  also  in  the  regulations  as  to  marriage  cere- 
monies and  similar  enactments. 

Freedom  of  Speech. 

So  valuable  to  the  public  and  to  individuals  is  this  right  re- 
garded that  it  is  guaranteed,  both  in  our  Federal  and  State  Con- 
stitutions. Nothing  on  this  subject  was  contained  in  the  Con- 
stitution of  the  United  States  as  originally  adopted,  but  the 
omission  was  made  so  formidable  an  objection  to  the  instrument 
that  a  provision  curing  the  defect  was  incorporated  in  the  first 
amendment,  and  Congress  has  been  thenceforward  forbidden  to 
make  any  law  abridging  the  freedom  of  speech  or  of  the  press. 

This  amendment  has  no  application  to  the  several  state  govern- 
ments but  there  is  a  similar  article  in  almost,  if  not  in  every 
State  Constitution.  We  give  the  one  in  the  constitution  of  Texas 
as  fairly  typical. 

"Every  person  shall  be  at  liberty  to  speak,  write  or  publish 
his  opinions  on  any  subject,  being  responsible  for  the  abuse  of 
that  privilege;  and  no  law  will  ever  be  passed  curtailing  the 
liberty  of  speech  or  of  the  press,. "  These  provisions,  read 
casually,  would  seem  to  guarantee  unrestrained  license  in  the 
matter  of  expressing  thought ;  but  this  is  not  true.     Freedom  of 


206  AMERICAN   ELEMENTARY   LAW. 

speech  is  not  license  of  speech,  but  is  liberty  of  speech — that  is, 
the  right  to  speak,  limited  by  due  and  just  regard  for  the  rights 
of  others.  Each  man's  right  of  speech  stops  where  the  other 
man's  right  of  reputation  sets  in.  It  is  as  much  the  duty  of  the 
sovereign  to  protect  the  one  in  his  just  good  name  as  to  guarantee 
to  the  other  the  right  to  express  himself  on  proper  occasions  on 
proper  subjects.  So  that,  notwithstanding  these  constitutional 
provisions,  reasonable  and  just  laws  are  enacted  punishing  de- 
famation, both  criminally  and  civilly. 

Freedom  of  Thought. 

Thought,  unexpressed  by  word  or  act,  is  the  individual  concern 
of  the  mind  producing  it,  and  the  law  does  not  take  cognizance 
of  it.  When  it  is  expressed,  it  becomes  conduct,  and  is  regulated 
by  the  rules  applicable  to  freedom  of  action. 

Freedom  of  Conscience. 

This  is  in  the  same  category  as  freedom  of  thought.  When  the 
eonscience  manifests  itself  in  words  or  conduct,  these  become 
proper  subject  matter  for  legal  cognizance.  The  law  is  very 
tender  in  its  regard  for  the  conscientious .  scruples  of  the  indi- 
vidual, and  allows  to  him  the  very  largest  latitude  consistent 
with  the  safety  of  other  individuals,  and  6f  the  public.  But  one 
can  not,  under  claim  of  obedience  to  conscience  or  to  a  religious 
duty  or  in  worship,  do  acts  which  are  directly  invasive  of  the 
rights  of  others,  or  detrimental  to  the  public  safety. 

If  a  sect  or  an  individual  should  conscientiously  believe  that 
human  sacrifice  was  pleasing  to  or  commanded  by  the  god  whom 
he  worshipped,  he  still  would  not  be  permitted  to  take  the  life  of 
the  proposed  victim  and  justify  it  as  a  religious  rite.  Also,  if  a 
sect  should  undertake  to  carry  on  some  public  form  of  meeting 
which  was  manifestly  indecent  or  immoral,  it  would  be  prohibited 
from  so  doing.  Still,  if  the  act  or  acts  be  not  clearly  contrary  to 
public  morals  and  to  the  legal  rights  of  others,  the  government 
will  not  interfere. 

Right  to  Reputation. 

Character  is  what  a  person  really  is;  reputation  is  what  he  is 
generally  thought  to  be.  In  the  early  stages  of  social  life  but 
little,  if  any,  protection  was  afforded  to  reputation.    As  the  world 


LEGAL   RIGHTS  AND   THEIR   CLASSIFICATION.  207 

progressed  in  enlightenment  and  its  appreciation  of  real  values, 
social  and  business  standing  were  seen  to  depend  very  largely 
upon  what  was  generally  thought  of  a  person,  and  the  law  took 
cognizance  of  his  right  to  a  fair  reputation  and  threw  its  pro- 
tection around  it.  The  general  rule  of  law  on  this  subject  may 
be  stated  thus :  A  person  has  a  legal  right  to  a  reputation  exactly 
corresponding  with  his  character — no  better,  no  worse.  To  this 
general  rule  there  are  a  few  exceptions,  made  from  considerations 
of  public  policy.  These  exceptions  are  all  made  against  the 
protection  of  the  reputation. 

The  truth  of  the  matter  stated  is  always  a  complete  defense  in 
any  civil  suit  for  defamation.  So  that,  if  one  has  a  reputation 
better  than  his  character  and  another  shall,  by  telling  the  truth, 
reduce  his  reputation  to  the  level  of  his  character,  no  matter  how 
injurious  this  may  be  to  the  individual,  it  is  never  a  tort.  The 
law  looks  at  the  matter  differently,  however,  when  the  rights  of  the 
public  are  concerned,  and  often,  to  prevent  breach  of  the  peace 
and  preserve  public  order,  it  will  make  the  utterance  of  charges 
of  certain  kinds  against  individuals  criminal  and  punishable  as 
such,  whether  they  be  true  or  false. 

The  exceptions  to  the  rule  that  false  defamatory  statements 
arc  actionable  are  based  on  considerations  of  public  policy. 
They  are  but  an  application,  in  this  particular  matter,  of  the 
general  rule  that  the  public  safety  is  the  supreme  law.  We  find, 
therefore,  if  the  person  making  the  utterance  is  one  charged  with 
an  official  duty  and  the  utterance  is  made  in  the  discharge  of  or 
in  immediate  connection  with  such  duty,  the  injury  must  be 
borne  by  the  person  defamed,  and  no  redress  can  be  had  from 
the  officer.  This  is  true,  even  if  the  officer  making  the  statement 
knows  it  to  be  false  and  acts  maliciously;  provided,  always,  it  is 
made  in  the  discharge  or  is  directly  connected  with  the  dis- 
charge of  his  public  duty.  The  nonliability  to  private  suit  for 
utterances  made  by  public  officials  under  the  circumstances  in- 
dicated, is  absolute  and  unconditional,  and  statements  thus  pro- 
tected are  known  as  absolutely  privileged  communications. 

"When  the  person  making  the  defamatory  statement  does  not 
owe  a  public  duty,  and  is  not  discharging  such  a  duty,  but  still 
sustains  such  relation  to  the  person  to  whom  the  statement  is 
made  that  he  owes  to  him  a  duty  of  giving  information  concern- 


208  AMERICAN   ELEMENTARY   LAW. 

ing  the  person  defamed,  out  of  consideration  of  this  private  duty 
the  law  gives  to  the  person  giving  the  information  a  conditional 
privilege  to  speak.  This  privilege  is  not  absolute,  but  is  condi- 
tioned upon  the  absence  of  malice  and  the  presence  of  good  faith 
that  is,  when  a  statement  is  made,  in  the  attempted  discharge  of 
a  duty  to  give  private  information,  the  person  making  the  state- 
ment, in  order  to  claim  the  privilege  arising  from  such  duty  must 
be  able  to  show  that  he  was  not  actuated  by  malice,  and  honestly 
believed  the  statement  to  be  true.  If  these  conditions  are  shown, 
he  is  not  liable  for  any  injurious  consequences  of  the  statement 
made,  although  it  were  really  false. 

These  two  doctrines  of  absolutely  and  conditionally  priv- 
ileged communications  constitute  material  limitations  upon  the 
right  to  protect  one's  reputation.  Subject  to  them,  the  general 
rule,  as  stated  above,  is  that  each  person  is  legally  entitled  to  a 
reputation  which  is  the  exact  equivalent  of  his  real  character; 
and  hence  no  statement  is,  legally  speaking,  defamatory  or  in- 
jurious, which  is  true  and  only  tends  to  bring  his  reputation  to 
the  level  of  his  character.  Every  statement  that  is  not  privileged, 
which  is  false  and  does  bring  the  reputation  below  the  standard 
of  character,  is  actionable,  the  amount  of  recovery  depending  in 
each  case  upon  its  facts  and  circumstances. 


CHAPTER  VIII. 

LEGAL  RIGHTS  AND  THEIR  CLASSIFICATION   (CONTD.) 
CIVIL  RIGHTS. 

The  term  civil  rights  has  come  into  frequent  use  in  connection 
with  Amendments  XIII  and  XIV  to  the  Federal  Constitution  and 
acts  of  Congress  thereunder.  As  thus  used  the  term  is  very  com- 
prehensive covering  a  great  many  of  the  rights  included  in  other 
classes  and  perhaps  a  few  not  included  in  any  other.  They  em- 
brace the  right  to  equal  protection  of  the  law,  to  due  process  of 
law,  to  equal  enjoyment  of  public  privileges,  and  to  share  only 
equally  in  public  burdens. 

Equal  Protection  of  Law. 

These  are  rights  dependent  on  membership  in  some  particular 
State  or  goverment.  The  first  and  most  important  of  them  is  to 
have  equal  protection  under  the  law.  There  are  several  provisions 
in  the  Federal  and  State  Constitutions  guaranteeing  this  right. 
The  first  section  of  the  fourteenth  amendment  to  the  Federal  Con- 
stitution is  in  these  words : 

"All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  No  State  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  nor  shall  any  State  deprive  any  per- 
son of  life,  liberty  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  But  this  must  be  a  denial  by  governmental  action  and 
not  by  act  of  the  individual,  to  be  an  infringement  of  this  princi- 
ple. The  privileges  and  immunities  guaranteed  by  this  amend- 
ment are  those  pertaining  to  the  person  by  nature,  or  by  reason 
of  citizenship  or  membership  in  the  United  States  government, 
and  do  not  include  political  rights  in  the  several  State  govern- 
ments. 

14 


210  AMERICAN   ELEMENTARY   LAW. 

Due  Process  of  Law. 

The  guarantee  as  to  due  process  of  law  is  for  the  benefit  of  all 
persons,  and  can  be  invoked  by  any  one  whose  rights  are  being 
dealt  with  by  the  governmental  agencies  of  either  the  Federal  or 
State  governments,  or  whose  rights  are  involved  in  any  litigation 
pending  in  the  courts  of  either  sovereignty. 

The  phrase,  due  process  of  law,  is  hard  of  definition.  The 
courts  have  frequently  declared  that  it  is  better  policy  not  to  at- 
tempt to  define  it,  but  to  deal  with  each  case  in  which  it  is  invoked 
upon  its  special  facts  and  circumstances.  While  this  may  be 
practically  convenient,  it  is  theoretically  very  unsatisfactory.  It 
is  an  expression  of  great  age,  and  is  by  some  early  English 
authors  regarded  as  equivalent  to  the  law  of  the  land,  and  this 
view  seems  to  be  generally  entertained  by  judges  and  writers  in 
the  United  States. 

While  exact  limits  may  not  be  set  to  it,  still  it  may  definitely  be 
stated  to  include  certain  fundamental  ideas.  The  right  guar- 
anteed forbids  the  government  to  deprive  any  citizen  of  rights 
either  of  person  or  property  except  in  due  conformity  to  the  rules 
and  principles  of  the  Common  Law.  As  said  by  Johnson,  Justice, 
in  Bank  v.  Okely,  4  Wheaton,  235,  it  is  apparent  that  "as  to  the 
words  from  Magna  Charta  incorporated  in  the  Constitution  of 
Maryland,  after  volumes  spoken  and  written  with  the  view  to  their 
exposition,  the  good  sense  of  mankind  has  at  length  settled  down 
to  this :  that  they  were  intended  to  secure  the  individual  from  the 
arbitrary  exercise  of  the  power  of  government,  unrestrained  by 
the  established  principles  of  private  rights  and  distributive  jus- 
tice." 

Judge  Cooley,  in  his*  work  on  Constitutional  Limitations,  441, 
says:  "Due  process  of  law,  in  each  particular  case,  means  such  an 
exercise  of  the  powers  of  the  government  as  the  settled  maxims  of 
law  permit  and  sanction,  and  under  such  safeguards  for  the  pro- 
tection of  individual  rights,  as  these  maxims  prescribe  for  the 
class  of  cases  to  which  the  one  in  question  belongs." 

Mr.  Webster,  in  his  brief  in  the  Dartmouth  College  case, 
4  Wheaton,  518  says :  ' '  By  the  law  of  the  land  is  more  clearly  in- 
tended the  general  law,  a  law  which  hears  before  it  condemns; 
which  proceeds  upon  inquiry,  and  renders  judgment  only  after 
trial.    The  meaning  is  that  every  citizen  shall  hold  his  life,  lib- 


LEGAL   RIGHTS  AND   THEIR   CLASSIFICATION.  211 

erty,  property,  and  immunities  under  the  protection  of  the  gen- 
eral rules  which  govern  society.  Everything  which  may  pass  un- 
der the  form  of  an  enactment  is  not,  therefore,  to  be  considered 
the  law  of  the  land. ' ' 

The  phrase  is  not  limited  to  judicial  proceedings.  On  the  other 
hand,  exercise  of  the  power  of  eminent  domain,  or  of  the  police 
power,  or  the  taxing  power  according  to  the  usages  and  customs 
and  general  principles  of  law  and  justice  applicable  in  each  par- 
ticular case,  is  due  process  of  law.  The  rule  frequently  is  invoked 
with  reference  to  legislative  action  depriving,  or  tending  to  de- 
prive, individuals  of  property  or  personal  rights  without  judicial 
investigation  and  adjudication. 

The  general  requirement  as  to  the  deprivation  of  right  in  judi- 
cial proceeding  is  that  the  party  whose  right  is  to  be  affected  must 
have  had  prior  information  as  to  the  intent  to  deprive  him  of  such 
right,  and  the  facts  or  grounds  upon  which  such  deprivation  is 
sought;  and,  second,  he  must  have  an  opportunity  to  be  heard 
before  some  legally  constituted  tribunal,  with  reference  to  such 
charges,  both  by  discussion  and  consideration  of  the  charges  and 
their  nature  and  his  legal  privileges  and  rights  with  reference 
thereto,  and  also  by  the  introduction  of  competent  testimony  in 
his  own  behalf  and  the  exclusion  of  illegal  and  incompetent  testi- 
mony against  him.  The  methods  of  depriving  a  citizen  of  his 
legal  rights,  by  other  departments  of  the  government  in  exercise 
of  other  powers,  do  not  frequently  involve  this  process  of  infor- 
mation conveyed  to  him  as  to  the  charges  and  investigation  con- 
cerning the  charge,  but  in  each  case  the  established  usages  of  the 
Common  Law  must  be  followed. 

The  fifth  amendment  to  the  Constitution  of  the  United  States 
guaranteed  the  right  of  due  process  of  law  to  all  citizens  of  the 
Federal  government,  so  far  as  the  action  of  the  Federal  govern- 
ment was  concerned.  The  fourteenth  amendment,  as  quoted 
above,  extends  this  guarantee,  and  makes  it  embrace  the  State 
governments,  and  their  action  as  well.  So  that  now,  neither 
State  nor  Federal  government  can  deny  to  a  citizen  "due  process 
of  law."  Similar  guarantees  of  this  same  right  are  found  in  the 
Constitution  of  each  State  of  the  Union  forbidding  the  govern- 
ment organized  thereby  from  interfering  with  or  denying  to  the 
citizen  this  right. 


212  AMEIilCAN   ELEMENTABY  LAW. 

POLITICAL  RIGHTS. 

Suffrage. — The  most  important  political  right  is  participation 
in  government,  This  is,  strictly  speaking,  a  right  derived  from 
the  law  as  made  by  the  sovereign.  Those  members  of  the  commu- 
nity in  which  sovereign  power  is  lodged  determine,  by  their  own 
judgment  and  will,  what  classes  of  persons  shall  participate  in  the 
exercise  of  sovereignty.  In  such  determination,  the  majority 
rules,  so  that  we  sometimes  find  that  this  right  will  be  extended  to 
include  persons  not  theretofor  entitled  to  participate ;  a  most  con- 
spicuous illustration  being  the  enfranchisement  of  the  negro,  as 
the  result  of  the  Civil  War.  Again,  it  sometimes  occurs  that  the 
majority  of  the  electors  will  determine  that  certain  qualifications 
which  such  majority  possesses,  but  which  are  not  enjoyed  by  a 
minority  of  their  present  number,  shall  be  essential  to  the  exer- 
cise of  the  right  of  suffrage;  and,  when  this  will  is  properly  de- 
clared and  announced,  those  persons  who  were  formerly  enfran- 
chised, but  who  are  now  disqualified,  can  no  longer  insist  upon 
the  right  of  suffrage,  as  one  pertaining  to  them  as  individuals, 
and  of  which  they  could  not  justly  be  deprived. 

The  usual  method  of  exercising  this  right  of  participation  in 
government  is  by  voting.  Who  shall  vote  in  any  particular  gov- 
ernment is  always  determined  by  the  will  of  the  sovereign  in  that 
government.  As  pointed  out  before,  the  qualification  of  electors 
in  the  Federal  government  depends,  in  each  State,  upon  the  will 
of  the  people  of  that  State,  subject  only  to  the  limitations  of  the 
fifteeth  amendment,  which  forbid  the  disqualification  of  any  per- 
son as  a  voter  on  account  of  race,  color  or  previous  condition  of 
servitude.  In  all  other  respects  the  several  States  may  make  such 
regulations  as  to  suffrage  as  they  see  fit.  These  regulations  do,  in 
fact,  differ  largely  in  the  different  states  and  it  would  not  be 
profitable  to  attempt  to  deal  with  the  matter  in  detail. 

The  right  to  vote  is  the  right  to  express  one 's  choice  with  regard 
to  any  matter  and  to  have  such  expression  counted  and  given  its 
proportionate  weight  in  the  determination  of  the  issue. 

It  is  the  duty  of  the  state  to  protect  the  voter  in  the  exercise  of 
his  franchise.  To  accomplish  this  it  is  necessary  to  secure  to  him  . 
not  only  an  expression  of  his  preference  but  also  to  provide  that 
his  vote  shall  be  counted  and  estimated  at  what  it  is  really  worth. 
Each  legal  vote  cast  at  an  election  is  of  equal  value  and  should 
have  equal  weight.     To  permit  illegal  voting  is  to  destroy  this 


LEGAL   RIGHTS  AND   THEIR   CLASSIFICATION.  213 

equilibrium  and  to  diminish  the  relative  value  of  every  legal  vote 
in  opposition  to  which  an  illegal  vote  is  received- 
Office  Holding. 

Holding  office  is  another  method  of  actual  participation  in  the 
administration  of  government.  It  will  be  readily  seen  that  this  is 
not  a  right  pertaining  personally  to  any  man  or  set  of  men,  but 
only  to  such  persons  as,  according  to  the  rules  and  usages  of  law, 
are  selected  for  this  purpose  and  inducted  into  office. 

Jury  service  is  rather  a  duty  than  a  privilege.  Clearly  the  sov- 
ereign has  the  right  to  designate  what  class  of  persons  shall  per- 
form this  important  function,  how  they  shall  be  selected,  and  un- 
der what  limitations  they  shall  serve. 

Right  of  Petition. 

The  right  to  present  petitions  to  different  governmental 
agencies  is  one  recognized  as  existing  in  all  people.  For  its  denial 
it  would  be  practically  very  difficult  to  give  adequate  and  appro- 
priate remedy,  except  by  criminal  prosecution  and  removal  from 
office,  or  by  impeachment.  It  is  more,  in  its  nature,  an  effort  to 
persuade  than  a  right  practically  enforcible  by  law. 

RIGHTS  AGAINST  PARTICULAR  PERSONS. 

These  are  rights  which  exist  only  in  behalf  of  particular  per- 
sons against  particular  persons.  They  are  not  rights  pertaining 
to  any  one  or  more  designated  persons  and  enforceable  against 
the  whole  world  nor  are  they  rights  pertaining  to  everyone 
against  a  particular  person  or  persons.  They  exist  only  in  favor 
of  a  particular  person  or  persons  and  are  enforceable  only  against 
a  particular  person  or  persons. 

Dependent  on  Contract. 

By  far  the  larger  share  of  these  rights  arise  from  agreement  or 
contract  between  the  parties  having  the  right  and  owing  the  cor- 
relative duty.  In  some  instances,  however,  they  grow  out  of 
special  relations  between  parties  which  do  not  depend  upon  agree- 
ment between  them. 

Such  of  these  rights  as  depend  upon  contract  are  regulated 
largely  by  contract  law  and  the  agreements  from  which  they  re- 
sult must  have  the  characteristics  that  have  been  heretofore  indi- 


214  AMERICAN   ELEMENTARY   LAW. 

cated,  viz.,  genuineness,  competency  of  parties,  legality  of  pur- 
pose, consideration,  and  proper  form. 

This  class  of  rights  is  very  extensive  and  covers  most  of  the  re- 
sults of  the  business  activities  of  the  world.  They  include  agree- 
ments to  pay  money,  to  render  service,  or  to  do  or  not  to  do  any 
of  the  innumerable  things  that  are  covered  by  the  contracts  of 
men  in  carrying  out  their  several  occupations. 

In  this  class  are  all  the  respective  rights  between  master  and 
servant,  principal  and  agent,  common  carrier  and  patron,  bailor 
and  bailee,  and  all  other  such  special  relations  as  may  exist  be- 
tween particular  persons. 

Not  Dependent  on  Contract. 

In  this  class  are  the  rights  existing  between  parent  and  child  as 
such.  They  are  scarcely  to  be  regarded  as  rights  in  the  strict  use 
of  the  term.  The  authorities  usually  speak  of  them  as  rights  of 
imperfect  obligation ;  that  is,  as  conditions  which  the  law  recog- 
nizes, and  which  it  takes  into  account  in  construing  and  determin- 
ing the  legal  effect  of  the  voluntary  acts  of  the  parties,  and  yet 
out  of  which,  considered  strictly  as  such,  no  enforceable  obligation 
arises.  That  is,  the  parent  is  recognized  as  morally  and  legally 
bound  to  support  the  child;  and  if  he  fails  to  do  so  and  a  third 
party  supplies  the  child  with  necessaries,  the  parent  may  be 
forced  to  pay  for  them ;  but  the  child  would  have  no  cause  of  ac- 
tion for  the  pain  or  inconvenience  or  injury  sustained  by  it  by 
reason  of  the  want  of  proper  nourishment  and  support.  So  the 
parent  is  entitled  to  the  wages  of  the  child  earned  during  minority 
and  if  the  child  works  and  earns  wages  the  parent  can  compel  the 
party  for  whom  the  service  was  rendered  to  make  the  payments 
to  him ;  but  if  the  child  does  not  work,  and  does  not  earn  wages, 
the  parent  can  not  sue  him  for  such  failure  and  compel  him  to 
pay  to  the  parent  the  value  of  the  child's  time.  These  conditions 
are  anomalous,  but  must  not  be  overlooked. 

The  rights  and  duties  existing  between  an  officer  of  the  law  and 
those  with  whom  he  deals  in  his  official  capacity  also  come  under 
this  head.  The  same  is  true  as  to  all  rights  and  duties  incidental 
to  other  special  relations  which  do  not  depend  upon  contract. 

RIGHTS  IN  THINGS. 

When  a  person  sustains  such  a  relation  to  a  thing  that  he  has 
over  it  the  dominion  known  as  ownership,  we  say,  and  say  truly, 
that  he  has  a  right  in  the  thing.     Such  rights  are  enforceable 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  215 

against  all  persons,  and  not  against  specific  or  particular  persons, 
and,  for  this  reason,  they  are  very  frequently  called  rights  in 
rem,  or  rights  enforceable  against  the  whole  world.  These  terms 
and  designations  are  quite  appropriate  and  would  be  very  useful 
but  for  the  fact  that  they  have  been  used  by  so  many  persons  and 
in  so  many  different  senses  that  it  is  almost  impossible  to  keep  in 
mind  just  what  different  persons  mean  by  them ;  and  so  it  seems 
best  to  use  the  simpler  expression  of  rights  in  things.  These 
rights  are  also  known  as  property  rights.  This  is  quite  an  apt 
designation. 

Ownership. 

Ownership,  in  full  sense,  has  five  elements:  (1)  The  right  of 
possession;  (2)  of  use;  (3)  to  receive  profits  or  increment;  (4)  to 
modify  or  destroy;  (5)  to  dispose  of.  When  these  five  powers,  or 
privileges,  combine  in  one  person  as  to  any  one  thing,  such  person 
is  the  general  owner  of  such  thing.  These  rights  of  the  general 
owner  are  exclusive,  and  the  law,  in  recognizing  them,  gives  to 
him  the  capacity  to  control  others  with  reference  to  the  thing  thus 
owned.  He  may  keep  it  in  his  possession  or,  if  he  desires,  place  it 
in  the  possession  of  some  other  person  willing  to  receive  it;  he 
may  use  it  himself  exclusively  and  deprive  all  other  persons  of 
any  participation  in  such  use ;  he  may  receive  and  appropriate  to 
himself,  to  the  exclusion  of  all  others,  all  profits  and  benefits  aris- 
ing from  it ;  he  may  change  its  form  or  nature,  or  destroy  it  en- 
tirely, and  he  may  also  dispose  of  it,  or  transfer  his  title  or  estate 
to  other  persons.  Thus,  if  A  owns  a  tract  of  land  and  any  one 
else  enters  into  possession  of  it  and  seeks  to  appropriate  its  use 
and  benefit  to  himself,  the  sovereign  will,  upon  proper  application 
by  A,  or  his  proper  representatives  dispossess  the  intruder  and  re- 
store A  to  possession;  and  will  also  compel  the  wrong-doer  to  ac- 
count to  A  for  the  reasonable  value  of  the  use  of  the  land,  while 
unlawfully  detained  by  him,  and  for  any  injury  he  may  have 
done  to  it  during  his  possession.  The  same  is  true  of  personal 
property.  The  owner  can  compel  the  trespasser  to  surrender  the 
thing  to  him,  and  account  for  the  reasonable  value  of  its  use,  and 
also  for  damages  done  to  it  by  him.  If  the  wrong-doer  has  de- 
stroyed it  or  taken  it  away  so  that  the  owner  can  not  regain  the 
thing  itself,  he  may  compel  payment  of  its  value. 

Thus  we  see  that  a  person  invested  with  complete  ownership  in 
a  thing  can  prevent  its  use,  possession,  injury  or  destruction  by 


216  AMERICAN   ELEMENTARY   LAW. 

another,  or  hold  such  other  responsible  for  a  disregard  and  viola- 
tion of  his  (the  owner's)  rights  in  either  of  the  elements  of  own- 
ership. The  owner  also  has  the  affirmative  right  of  possession  use 
and  enjoyment  himself,  without  liability  to  any  one  therefor.  He 
may  also  modify  or  change  the  thing  owned.  If  it  be  personal 
property,  he  may  absolutely  destroy  it.  If  it  be  land,  he  can 
remove  or  destroy  the  improvements  thereon,  quarry  the  rock,  cut 
the  timber,  or  in  any  way  lessen  or  diminish  its  value,  and  in  no 
event  will  he  be  liable  to  any  one  else  for  so  doing. 

His  right  of  ownership  also  extends  to  the  power  of  disposition 
over  the  property;  that  is,  he  may  transfer  his  estate  or  owner- 
ship to  another  and  substitute  the  latter  for  himself  in  his  rela- 
tion to  the  thing.  This  right  of  disposition,  or  power  of  substitu- 
tion, may  be  exercised  either  fully,  by  transfer  of  the  whole  estate. 
to  the  whole  property,  or  partially  by  transfer  of  some  estate  less 
than  all,  or  by  transfer  of  the  whole  estate  to  some  part  of,  but 
not  to  all,  of  the  thing  owned.  From  the  transfer  of  some  inter- 
est, claim  or  estate  less  than  the  complete  ownership  results  what 
is  known  in  law  as  special  or  limited  ownership  of  property. 

When  we  say  that  the  person  is  the  general  owner  of  a  thing 
and  has  complete  and  unlimited  estate  in  it  or  title  to  it,  we  speak 
relatively.  We  mean  he  has  the  highest  form  or  character  of  title 
and  the  most  beneficial  ownership  which  the  law  recognizes.  We 
do  not  mean  that  he  can  enjoy  any  one  of  the  incidents  of -owner- 
ship absolutely  and  without  limitation.  All  ownership  is  not  only 
subject  to  limitation  while  it  continues,  but  the  estate  itself,  with 
all  its  incidents,  may  be  taken  from  the  owner  at  any  time,  if  the 
public  good  requires  it.  If  this  taking  be  under  the  exercise  of 
the  power  of  eminent  domain  it  must  ordinarily  be  accompanied 
by  compensation,  or  provision  for  compensation.  If,  however,  the 
taking  be  under  the  ex&rcise  of  the  police  power,  the  owner  is  not. 
in  all  instances,  guaranteed  even  this  right  of  compensation. 
Here,  also,  the  public  safety  is  the  supreme  law.  and  if  it  be 
demonstrated  that  the  public  safety  requires  the  sacrifice  of  the 
property  of  the  individual,  the  right  of  the  individual  must  yield. 

So,  as  to  changes  or  modifications  of  the  thing,  and  so  also  in 
the  regulation  of  the  right  of  disposition.  Illustrations  of  the 
latter  are  constantly  occurring.  The  statutes  regarding  the  trans- 
fer of  real  estate  require  that  they  be  in  writing.  Denials  to 
minors  and  married  women  of  the  power  to  sell  land  at  all,  or 


LEGAL.   RIGHTS   AND   THEIR   CLASSIFICATION.  217 

only  in  prescribed  ways,  etc.,  are  so  familiar  to  us  that  we  merely 
note  them  as  limitations  on  this  right. 

So  we  may  regard  it  as  a  settled  rule  of  law  that  there  are  real 
and  effective  limitations  on  the  rights  which  the  law  denominates 
as  absolute  or  general  ownership.  They  grow  out  of  two  legal 
principles:  that  the  public  safety  is  the  supreme  law,  and  that 
every  one  must  so  use  his  own  as  not  to  interfere  with  the  just 
rights  of  others.  We  may,  therefore,  define  general  ownership  of 
a  thing  as :  the  right  to  exclusive  dominion  over  it  and  to  the  ex- 
elusive  possession,  use,  and  enjoyment  of  it  and  the  power,  of 
changing  or  disposing  of  it,  subject  only  to  the  rights  of  the  pub- 
lic in  the  thing  and  to  control  of  the  owner  in  its  use  and  dis- 
position as  reserved  in  the  Constitution  and  Law. 

Special  ownership. — Special  ownership  is  some  interest  or  es- 
tate in  a  thing  existing  in  one  not  the  general  owner,  by  which  he 
is  legally  entitled  for  a  limited  time  and  to  a  limited  extent,  and 
for  limited  purposes,  to  exercise  dominion  or  rights  of  ownership 
over  it. 

This  special  property  is  some  interest  or  estate  carved  out  of 
or  separated  from  the  general  ownership,  either  by  act  of  the 
parties  or  by  operation  of  law.  The  following  are  illustrations  of 
special  ownership : 

1.  Some  title  or  estate  less  than  absolute,  as  the  hiring  of  a 
chattel  or  the  leasing  of  land. 

2.  A  legal  right  to  possession,  coupled  with  some  duty  concern- 
ing the  thing,  as  a  common  carrier  having  freight  in  his  posses- 
sion, or  an  officer  holding  property  under  legal  process. 

3.  Simple  prior  possession,  as  by  finder  of  lost  property,  or  by 
a  trespasser  as  against  all  persons  except  the  owner. 

4.  Some  pledge  or  encumbrance  of  the  property,  as  a  deposit  of 
note  as  collateral  security,  or  a  mortgage  on  real  estate. 

In  these  and  all  other  instances  the  rights  and  liabilities  of  the 
special  owner  depend  on  the  facts  of  the  case.  Usually  these 
rights  grow  out  of  or  result  from  contract  with  the  general  owner, 
in  which  cases  the  rights  of  the  parties  depend  on  the  contract 
construed  and  interpreted  by  law.  Sometimes  they  grow  up  by 
operation  of  law,  as  in  case  of  administration  and  receivership, 
etc.  In  all  cases  the  rights  of  the  parties  are  such  as  the  law  cre- 
ating the  estate  provides. 

Ownership  is  acquired   (1)    by   discovery,    (2)    by  conquest, 


218  AMERICAN   ELEMENTARY   LAW. 

(3)  by  production,  (4)  by  increase,  and  (5)  by  legal  succession 
to  the  rights  of  another,  as  by  purchase,  gift,  inheritance,  pre- 
scription, etc. 

Practically  anything  may,  under  proper  conditions,  become  the 
subject  of  man's  dominion  and  legal  right.  The  exceptions  us- 
ually given  are  human  beings,  light,  air,  and  water.  In  a  general 
way,  these  are  correct,  but  not  literally  so.  The  law  does  recog- 
nize ownership,  under  special  circumstances,  in  water,  air,  and 
light.    These  we  will  consider  later. 

The  subjects  of  ownership  are  usually  divided  into  real  and 
personal  property,  or  into  land  and  chattels.  The  lines  of  sepa- 
ration are  not  always  clearly  drawn,  and  it  is  frequently  difficult 
to  determine  in  which  class  a  given  estate  or  thing  falls.  This 
classification  involves  both  the  nature  of  the  thing  owned  and  the 
nature  of  the  estate  or  interest  held  in  it.  The  distinguishing 
characteristics  of  real  property  are,  as  to  the  thing  owned,  per- 
manency and  immobility,  and  as  to  estate  inheritability  and  in- 
definite duration  not  shorter  than  one  life.  All  property  and  es- 
tates which  are  not  real  are  personal.  Everything  which  may  be 
owned,  and  which  does  not  come  within  the  meaning  of  real  es- 
tate, is  personalty.  We  will  consider  the  general  subject  of  prop- 
erty more  at  length  hereafter. 

RIGHTS  IN  PERSONS. 

This  is  not  the  usual  method  of  classifying  the  kind  of  rights 
now  under  consideration.  It,  however,  seems  the  simplest  and 
most  natural. 

Some  separate  classification  is  necessary  to  distinguish  these 
from  rights  inhering  in  one's  own  person,  rights  in  things,  and 
rights  against  persons,  as  heretofore  discussed. 

These  rights  consist  in  the  legally  protected  privileges,  claims, 
and  interests  which  one  person  has  in  another.  They  always  re- 
sult from  some  special  relation  existing  between  the  person  having 
the  right  and  the  one  as  to  whom  the  right  exists. 

This  special  relation  may  be  dependent  on  contract  between  the 
parties,  or  it  may  be  independent  of  contract.  These  privileges 
and  interests  differ  materially  from  property,  in  the  sense  we  use 
that  term  regarding  things.  Under  our  law,  a  person  is  not  a 
subject  of  ownership.     Nor  can  one  acquire  over  another  that 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  219 

species  of  dominion  which  the  law  denominates  ownership,  but 
still  he  may  have  legal  rights  of  a  different  kind,  resembling  that 
in  some  respects. 

The  most  important  of  these  rights  result  from  the  relations 
which  are  usually  spoken  of  as  domestic,  viz. :  husband  and  wife, 
parent  and  child,  master  and  servant. 

The  husband  has  certain  well  established  rights  regarding  the 
person,  services,  society,  and  affections  of  his  wife,  and  any  one 
violating  any  one  of  these  will  be  subject  to  suit  therefor.  So  the 
wife  has  similar  rights  though  not  to  the  same  extent,  perhaps, 
with  regard  to  the  husband.  It  is  well  settled  that  the  parent  is 
entitled  to  the  services  of  the  child,  and  that  the  child  is  entitled 
to  maintenance  and  support  from  the  parent.  This  last,  however, 
is  a  right  which  is  not  directly  enforceable.  So  the  master  is  en- 
titled to  the  services  of  the  servant,  and  any  person  who,  by  direct 
and  unlawful  act,  prevents  his  rendering  such  service  is  respon- 
sible for  damages. 

Possibly  the  most  clearly  defined  and  strikingly  illustrated  in- 
stance of  the  rights  which  one  person  has  in  another  is  furnished 
by  the  statutory  provision  for  compensating  certain  persons  for 
injuries  sustained  by  them  by  the  wrongful  killing  of  another. 
While  the  deceased  person  lived,  these  other  parties  sustained  to 
him  such  relations  as  to  make  it,  in  most  instances,  his  legal  duty, 
and  in  all  instances  his  moral  duty,  to  aid  and  serve  them  to  some 
extent.  This  service  he  may  not  render,  but  if  the  relationship  is 
such  as  to  make  it  the  legal  duty  to  render  it,  or  if  the  duty  be  a 
moral  one,  and  there  be  proof  of  actual  recognition  and  observ- 
ance of  the  duty  by  the  deceased,  the  statute  recognizes  this  fact, 
and  allows  compensation  to  the  designated  parties  for  what  they 
have  lost  in  the  death  of  the  relative.  This  compensation  is  not 
for  the  injury  sustained  by  the  dead  person,  nor  for  the  mental 
pain  or  suffering  of  the  living,  but  for  the  pecuniary  loss  they 
have  sustained  by  reason  of  the  death  of  the  other  party. 

These  are  purely  statutory  rights,  and  no  one  is  entitled  to 
them  except  those  mentioned  in  the  statute,  and  no  one  is  re- 
sponsible except  those  made  so  by  the  statute.  The  liability  only 
arises  when  the  killing  occurs  in  the  manner  set  out  by  the  stat- 
ute. In  other  words,  the  rights  are  purely  statutory,  and  the 
statutes  are  strictly  construed. 


220  AMERICAN   ELEMENTARY   LAW. 

REMEDIAL  RIGHTS. 

These  rights  are  of  two  kinds : 

(1)  Such  as  are  recognized  by  law  as  existing  in  individuals, 
to  be  exercised  by  them,  usually  known  as  the  right  of  self-help 
or  self-defense,  and 

(2)  Those  created  by  law,  consisting  in  the  right  to  compensa- 
tion, through  governmental  agencies,  for  wrongs  already  com- 
mitted, and  the  right,  through  such  agencies,  to  prevent  the  com- 
mission of  threatened  and  imminent  injury. 

In  the  state  of  nature  which  preceded  law,  whatever  remedy 
one  had  depended  on  his  capacity  to  care  for  himself.  He  de- 
termined what  his  rights  were,  and  upheld  them  with  the  strong 
hand,  as  far  as  he  was  able.  With  the  coming  of  government 
there  necessarily  came  limitations  upon  the  individual.  The 
extent  and  nature  of  these  limitations  differ  in  different  govern- 
ments, and  in  the  same  governments  at  different  times.  As  these 
limitations  on  self-determination  of  right  and  self-execution  of 
remedy  are  established  by  law,  the  law  itself,  as  a  compensation, 
affords  protection  to  such  of  the  claims  theretofore  asserted  by 
the  individual  as  it  deems  proper  to  recognize  and  perpetuate. 
Sometimes  this  protection  is  effected  by  recognizing  in  the  indi- 
vidual the  privilege  of  preventing  or  suppressing  the  threatened 
wrong,  but  usually  by  announcing  its  recognition  of  the  right 
and  affixing  certain  public  penalties  or  private  remedies  for  its 
violation,  aud  establishing  tribunals  to  act  for  it  in  investigating 
alleged  violations  of  such  rights,  and  applying  the  penalty  or 
remedy  as  the  law  and  the  facts  may  require.  This  gives  us  our 
two  classes  of  remedies,  those  applied  by  the  individual  in  his 
own  behalf,  and  those  applied  by  the  law  through  its  duly  au- 
thorized representatives. 

Self-Hebp. — The  first  of  these  classes  is  small  in  number,  and 
rarely,  if  ever,  extends  to  redress  for  injuries  already  sustained. 
They  usually  consist  in  the  privilege  of  defending  one's  self  and 
members  of  his  family,  or  even  other  parties,  from  some  imme- 
diate and  serious  bodily  harm,  sought  to  be  inflicted  by  another. 
In  some  instances,  the  rule  is  enlarged  so  as  to  include  defense 
of  the  rightful  possession  of  property.  The  general  rules  gov- 
erning this  subject  are : 

(1)  The  injury  sought  to  be  prevented  must  be  unlawful  and 
substantial  in  its  nature. 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  221 

(2)  It  must  threaten  the  person  of  the  one  sought  to  be  de- 
fended, or  property  in  actual  possession  of  the  person  exercising 
the  privilege. 

(3)  It  must  be  real  danger,  or  the  circumstances,  as  they  rea- 
sonably atppear  to  the  party  acting,  must  be  such  as  to  give  a 
reasonable  appearance  of  danger. 

(4)  The  danger  must  be  immediate  and  present,  and  not  pros- 
pective or  future. 

(5)  No  more  force  must  be  used  than  is  reasonably  sufficient 
to  prevent  the  threatened  wrong. 

Unless  these  facts  concur,  the  remedy  by  self-help  is  not  recog- 
nized. 

Remedy  Through  Governmental  Agencies. — The  second  class  of 
remedies,  those  afforded  through  governmental  agencies,  are 
much  more  numerous.  The  instrumentalities  through  which  they 
are  usually  applied  are  the  courts.  Ordinarily,  the  law  says'  cer- 
tain acts,  violative  of  the  rights  of  others,  must  not  be  done,  or 
that  certain  acts  conducive  to  the  good  of  others  must  be  done, 
and  provides  a  penalty,  or  means  of  redress,  for  a  violation  of 
the  rule  of  conduct  thus  created,  rather  than  agencies  through 
which  to  see  that  the  rule  is  obeyed.  Usually  this  remedy  pro- 
vided by  the  law  is  compensation  in  money  for  the  injury  or 
damage  sustained. 

In  a  few  instances,  the  remedies  are  not  compensatory,  but  pre- 
ventive, as  injunctions  forbidding  the  doing  of  threatened  wrongs, 
the  abatement  of  nuisances,  compelling  persons  to  give  peace 
bonds,  etc.  When  the  remedy  is  compensatory,  the  law  deter- 
mines the  elements  of  damage  to  be  taken  into  account  for  the 
violation  of  every  right,  and  gives  rules,  as  accurate  as  the  nature 
of  the  injury  will  permit,  by  which  to  estimate  or  measure  in 
money  the  amount  of  such  damage,  and  allows  to  the  injured 
party  as  compensation  for  his  injury  the  amount  thus  ascertained. 
In  some  cases  of  extreme  atrocity,  other  damages,  called  punitive 
or  exemplary,  are  allowed,  by  way  of  example  in  addition  to  the 
amount  estimated  for  compensation,  but  these  cases  are  rare. 

It  is  frequently  said  that  there  is  no  legal  right  without  a  legal 
remedy,  and  this  is  a  fairly  accurate  statement. 

As  the  application  of  remedies  is  the  almost  universal  way  of 
protecting  legal  rights,  the  relation  between  the  two  is  exceed- 
ingly close.    Yet  it  must  be  observed  that  the  remedy  is  not  the 


222  AMERICAN   ELEMENTARY   LAW. 

right;  it  is  only  the  means  by  which  the  right  is  protected  and 
practically  made  available.  The  remedy  by  which  the  right  is 
protected  may  be  taken  away  and  another  substituted  in  its  stead 
without  destroying  the  right,  provided  the  substituted  remedy  be 
substantially  as  effective  as  the  original  one ;  but  any  change  re- 
sulting in  appreciable  lessening  of  the  remedy  would  work  a  cor- 
responding depreciation  in  the  right.  Such  changes  seem  to  be 
within  the  power  of  the  State  legislature  as  to  rights  not  depend- 
ing on  contract,  as  there  is  nothing  in  the  Federal  Constitution 
on  the  subject.  The  clause  denying  to  the  States  the  power  to 
pass  laws  impairing  the  obligation  of  contracts,  however,  pre- 
vents them  from  taking  away  all  remedy  for  breach  of  contract, 
or  so  changing  the  remedy  as  to  destroy  its  practical  efficiency. 

Summing  up,  we  may  say  that  the  following  things  are  essen- 
tial to  the  existence  of  a  remedial  right  of  this  second  kind : 

(1)  A  right  in  one  or  more  persons  recognized  and  protected 
by  law. 

(2)  A  violation  of  this  right  by  a  wrongful  act  or  omission  of 
one  or  more  persons,  accomplished  or  imminent. 

(3)  Injury,  actual  or  presumed  by  law,  resulting  to  the  per- 
son or  persons  having  the  right,  directly  from  its  violation. 

The  injury  may  be  threatened,  if  imminent  and  practically 
sure  to  follow  the  wrong,  or  may  be  accomplished,  having  already 
resulted  from  the  wrong,  or  may,  in  case  of  continuing  wrongs, 
be  both  accomplished  and  prospective. 

Effect  of  Locality  on  Remedial  Rights. 

Crimes. — As  crimes  are  offenses  against  the  positive  law  en- 
acted for  the  benefit  and  protection  of  the  sovereign,  and  as  the 
power  of  the  sovereign  is  limited  by  the  territorial  boundaries 
of  the  country  in  which  it  exists,  it  would  seem  to  be  logical  and 
fundamental  that  punishment  could  only  be  inflicted  for  crime 
committed  in  the  country  in  which  the  criminal  law  was  enacted 
and  in  force;  we  do  find  this  very  largely  the  case.  A  second 
thought,  however,  will  show  that  some  acts  or  omissions  done  or 
suffered  outside  the  State  may  very  seriously  affect  its  welfare 
and  security.  Suppose  one  person  stands  near  a  State  line  and 
maliciously  shoots  another  who  is  in  another  State.  Is  he  to  be 
unpunished?  Is  the  sovereign  on  whose  soil  he  stood  powerless 
because  no  wounding  or  killing  occurred  within  its  territory,  and 


LEGAL   RIGHTS   AND   THEIR   CLASSIFICATION.  223 

is  the  other  without  jurisdiction  because,  at  the  time  the  wrong- 
ful act  was  done  by  him,  he  was  not  on  soil  belonging  to  it? 
Whatever  may  be  said  about  the  logic  of  these  propositions,  the 
.'aw  answers  them  both  in  the  negative,  and  holds  that  the  of- 
fender is  subject  to  punishment  in  either  jurisdiction  if  it  have 
a  criminal  law  covering  the  case.  And  so  in  a  great  many  other 
cases.  Thus  we  find  that  the  criminal  laws  of  the  different 
States  make  provision  for  the  punishment  of  a  number  of  acts 
and  omissions  committed  outside  the  State,  but  which  directly 
affect  the  peace  and  welfare  of  the  commonwealth. 

Torts. — As  a  tort  is  a  violation  of  duty  imposed  by  law,  the 
same  limitations  would  seem  to  apply  to  them  as  to  crimes,  and 
we  will  find  this  true,  to  a  great  extent.  This  is,  however,  much 
modified  by  the  principles  of  comity  or  good  will  between  gov- 
ernments, and  under  them  many  laws  imposing  duties  are  given 
more  or  less  affect  beyond  the  territorial  limits  of  the  govern- 
ment enacting  them. 

With  respect  to  the  place  of  giving  redress,  wrongs  not  in- 
volving breach  of  contract  are  divided  into  two  classes:  Local 
and  Transitory. 

A  local  wrong  is  one  which  can  only  be  done  at  one  place. 

A  transitory  wrong  is  one  that  might  have  been  done  anywhere. 

Thus,  land  is  immovable,  consequently  injury  to  any  particu- 
lar parcel  of  land  can  be  done  at  only  one  place,  viz. :  where  the 
land  is  situated. 

Personal  property  may  change  its  location,  and  is  subject  to  be 
injured  wherever  it  may  be ;  hence,  injuries  to  it  are  deemed  tran- 
sitory. It  is  true  any  given  injury  must  have  occurred  at  some 
one  place,  still,  on  account  of  the  movable  nature  of  the  property 
and  its  liability  to  injury  in  different  places,  the  law  looks  upon 
the  injury  as  transitory. 

The  rule  is  that  local  wrongs  can  only  be  redressed  by  the  gov- 
ernment in  whose  territory  the  wrong  is  committed ;  transitory 
wrongs  may  often  be  redressed  wherever  the  wrong-doer  may  be. 

Transitory  wrongs  committed  in  one  government  and  sought 
to  be  redressed  in  another  may  be  divided  into  four  general 
classes,  as  follows: 

(1)  Those  in  which  the  right  claimed  to  have  been  violated  is 
not  recognized  and  no  remedy  is  given  in  the  country  where  the 


224  AMERICAN   ELEMENTARY   LAW. 

facts  occurred,  but  in  which  the  right  claimed  to  have  been  vio- 
lated is  recognized  and  a  remedy  is  provided  in  the  country  where 
the  suit  is  brought. 

(2)  Those  in  which  right  and  remedy  both  exist  where  the 
facts  occurred,  but  neither  where  suit  is  brought. 

(3)  Those  in  which  the  right  is  the  same  in  both  places,  but 
materially  different  remedies  are  provided. 

(4)  Those  in  which  the  right  and  remedy  are  substantially  the 
same  in  both  places;  in  this  class  the  distinction  must  be  made 
between  cases  arising  under  the  common  law  and  those  arising 
under  statute. 

In  cases  one,  two  and  three  no  redress  is  given. 

Class  four  requires  more  careful  consideration.  The  American 
courts  presume  ordinarily. that  the  common  law  is  in  force  every- 
where, unless  the  contrary  is  pleaded  and  proved.  If,  therefore, 
the  matter  complained  of  be  a  tort  at  common  law  redress  can  be 
had.  If  the  wrong  is  not  a  tort  at  common  law,  but  is  under  a 
statute  in  force  where  the  act  was  done  which  is  substantially  the 
same  as  the  statute  on  the  subject  in  the  state  where  suit  is 
brought,  then  redress  may  be  had,  but  the.  existence  and  terms 
of  the  statute  where  the  act  was  done  must  be  pleaded  and  proved 
by  the  person  to  be  benefited  thereby.  If  there  is  any  substantial 
difference  between  the  statute  where  the  act  was  done  and  the 
statute  where  the  suit  is  pending,  this,  under  the  later  cases, 
seems  to  defeat  the  right  to  the  suit. 

Contract. 

As  contract  rights  and  duties  grow  out  of  the  acts  of  the  par- 
ties thereto,  and  not  out  of  direct  act  of  the  sovereign,  they  are 
regarded  as  transitory,  and  go  with  the  person  into  whatever 
jurisdiction  he  may  be.  So  if  the  agreement  is  valid  in  the  coun- 
try where  it  was  made  usually  it  will  be  enforced  wherever  the 
parties  may  be  found.  However,  it  must  not  be  contrary  to  the 
criminal  law  or  public  policy  of  the  place  where  it  is  sought  to  be 
enforced. 


CHAPTER  IX. 

SPECIAL  KINDS  OP  CONDUCT  AFFECTING  LEGAL  RIGHTS  AND  DUTIES. 

In  our  consideration  of  legal  rights,  we  have  found  that  some 
of  them  are  inherent  in  man  as  an  individual,  and  would  exist 
in  him  if  there  were  but  one  man.  Others  are  not  so  inherent, 
but  pertain  to  him  only  in  connection  with  and  in  relation  to 
other  persons  and  things,  and  that  the  relations  out  of  which 
these  grow  differ.  Some  are  social  relations  and  some  govern- 
mental; and  of  each  of  these  there  are  numerous  subdivisions. 
It  is  also  apparent  that  many  of  these  relations  are  concurrent, 
and  that  the  same  individual  may,  and  in  practical  life  really 
must,  sustain  a  great  many  of  these  relations  at  the  same  time, 
and  so  will  have  many  legal  rights  and  owe  many  legal  duties 
differing  in  kind  and  consequences,  at  the  same  time.  It  is  also 
apparent  that  life  and  its  various  relations  are  constantly  chang- 
ing, and  that  these  changes  are  individual  as  well  as  collective, 
and  hence  each  person 'has  different  legal  rights  and  duties  at 
different  times. 

These  changes  in  legal  rights  and  duties  involve,  first  a  change 
of  fact  and  second  the  law's  recognition  of  this  change  in  fact  as 
sufficient  to  work  a  change  in  legal  right  and  duty;  that  is,  if  a 
person  at  a  given  time  has  certain  fixed  legal  rights  and  duties 
and  some  new  fact  comes  into  his  life,  this  new  fact  may  or  may 
not  change  some  one  or  several  of  his  legal  rights  or  duties.  This 
will  depend  upon  the  law 's  recognition  of  the  fact  as  sufficient  to 
have  this  effect,  or  its  failure  so  to  recognize  it. 

Suppose  A  owes  B  one  thousand  dollars,  which  is  due.  Here 
B  has  the  legal  right  to  demand  and  receive  from  A  that  much 
money,  and  A  owes  the  legal  duty  to  pay  it.  The  legal  relation 
of  debtor  and  creditor  exists  between  the  two.  A  pays  B.  This 
fact  is  recognized  by  the  law  as  destroying  B's  right  to  demand 
and  receive  the  money  and  A's  duty  to  pay  it.  It  completely 
ends  the  relations  of  the  parties  as  to  that  debt,  B  no  longer 
being  creditor  and  A  no  longer  being  debtor.  But  suppose  that, 
16 


226  AMERICAN   ELEMENTARY   LAW. 

instead  of  paying  B,  A  should  ask  of  him  an  extension  of  time 
of  payment,  and  B,  without  any  consideration  for  so  doing, 
should  tell  A  he  could  have  an  additional  six  months  in  which  to 
pay.  This  would  not  in  any  way  affect  their  legal  relations,  be- 
cause the  law  does  not  recognize  such  a  promise  as  valid,  and  will 
not  undertake  to  enforce  it.  Having  no  consideration,  and  being 
executory,  the  law  will  pay  no  attention  to  it,  and  B  could  sue  A 
the  next  day  and  recover  judgment.  The  difference  is  this:  in 
the  first  case,  A  and  B  have  done  certain  things  which  the  law 
recognizes  as  sufficient  to  change  their  legal  rights  and  duties. 
In  the  second,  they  had  done  certain  things  which  the  law  does 
not  recognize  as  sufficient  for  that  purpose.  Before  we  are  com- 
petent to  judge  of  the  legal  rights  and  duties  of  any  person  at 
any  time  we  must  have  some  knowledge  of  the  kind  and  quality 
of  conduct  which  is  recognized  in  law  as  sufficient  to  create, 
modify  or  destroy  such  rights  or  duties. 

The  rights  which  are  known  as  personal  are  not  created  by 
conduct.  They  are  inherent  in  human  personality  and  come  into 
being  with  life.  They  may,  however,  be  modified  or  destroyed  by 
conduct.  All  other  rights  are,  however,  dependent  upon  conduct 
for  their  existence,  and  so  may  be  and  are  created  as  well  as 
modified  and  destroyed  by  it.  The  questions  necessarily  arise: 
What  lands  of  conduct  does  the  law  recognize  as  sufficient  to  mod- 
ify or  destroy  absolute  rights,  and  to  create,  modify,  or  destroy 
others?  Detailed  answers  would  cover  the  whole  body  of  Civil 
and  Criminal  Law.  We  may,  however,  get  fairly  accurate  gen- 
eral conceptions,  which  will  be  very  helpful  as  foundation  or 
basic  doctrines,  out  of  which,  in  their  various  combinations,  all 
the  detailed  rules  of  law  proceed. 

CONDUCT  VIOLATIVE  OP  CRIMINAL  LAW. 

Rights  of  individuals  may  be  lost  or  modified  by  conduct  vio- 
lative of  criminal  law.  Such  violation  may  result  in  loss  of 
property  rights,  as  when  the  penalty  is  a  pecuniary  fine;  or  loss 
of  freedom  of  action,  as  when  the  punishment  is  imprisonment; 
or  even  in  loss  of  life  as  when  the  crime  is  so  heinous  as  to  re- 
quire the  death  penalty.  The  rules  regulating  conduct  which 
leads  to  such  result  constitute  the  Criminal  Law,  in  all  of  its 
minuteness.    In  some  States  these  rules  are  embraced  in  common 


SPECIAL   KINDS   OP    CONDUCT.  227 

or  unwritten  law.  In  the  Federal  Government  and  in  a  number 
of  the  States,  the  entire  Criminal  Law  is  set  out  in  statutory  en- 
actments, and  no  act  or  omission  is  punishable  as  a  crime  unless 
it  be  expressly  so  provided  in  the  acts  of  Congress,  on  the  one 
hand,  or  of  the  State  legislature  on  the  other.  It  would  not  be 
profitable  to  take  up  these  Criminal  Law  rules  at  this  time. 

CONDUCT  AFFECTING  PRr/ATE  RIGHTS. 

Passing  to  conduct  affecting  the  rights  of  individuals  as  be- 
tween or  among  themselves  we  find  it  impossible  of  comprehen- 
sive and  accurate  classification.  There  are,  however,  special 
kinds  of  conduct  very  frequent  among  the  activities  of  life  which 
may  be  studied  profitably  though  not  with  the  exactitude  of 
scientific  classification. 

Some  of  these  kinds  of  conduct  we  will  present  in  the  following 
order : 

(1)  Agreement  resulting  in  contract, 

(2)  Agreement  not  resulting  in  contract, 

(3)  Conduct  not  in  reality  involving- agreement  yet  dealt  with 
as  contract, 

(4)  Negligence, 

(5)  Fraud, 

(6)  Estoppel, 

(7)  License, 

(8)  Waiver, 

(9)  Laches, 

(10)  Limitation, 

(11)  Notice, 

(12)  Death. 

Agreements  Resulting  in  Contract, 

Agreements  having  the  characteristics  recognized  by  law  as 
giving  them  validity  are  the  most  usual  and  simple  means  by 
which  legal  rights  and  duties  are  created,  modified,  and  termin- 
ated. Such  agreements  are  called  contracts.  We  have  also  found 
that  the  essentials  of  contract  are  (1)  Actual  meeting  of  the  minds 
of  the  parties,  including  both  understanding  and  will,  (2)  Le- 
gally competent  parties,  (3)  Legality  of  purpose,  (4)  Consid- 
eration, and  (5)  Proper  form. 


228  AMERICAN   ELEMENTARY   LAW. 

Contracts  are  divided  into  several  different  classes.  The  most 
important  of  these  for  our  present  purpose  are  into  executory 
and  executed  contracts  and  into  express  and  implied  contracts. 

Executory  contracts. — There  is  difference  of  opinion  as  to  the 
proper  distinction  between  executory  and  executed  contracts. 
There  is  high  authority,  holding  that  an  executory  contract  is  one 
of  which  no  term  has  been  performed  by  either  party  and  that 
performance  by  either  party,  makes  the  contract  executed,  though 
it  be  still  unperformed  by  the  other.  The  simplest  line  of  sep- 
aration is  to  regard  all  contracts  as  executory  so  long  as  one  or 
more  of  the  terms  of  the  agreement  consist  of  unfulfilled  prom- 
ises and  we  will  use  the  words  in  this  sense.  Sometimes  these 
unfulfilled  promises  are  on  both  sides ;  that  is,  each  party  to  the 
agreement  may  have  undertaken  some  one  or  more  acts  or  for- 
bearances for  the  advantage  of  the  other,  and  all  or  some  one  of 
these  undertakings  on  both  sides  may  still  be  unperformed.  Such 
a  contract  would  be  executory  on  both  sides,  because  each  would 
still  be  bound  or  obliged  to  do  something  in  fulfillment  of  the 
agreement.  Such  a  contract  is  bilaterally  executory.  Sometimes 
the  unfulfilled  promises  are  only  on  one  side;  that  is,  one  party 
has  done  all  he  has  undertaken  to  do,  but  the  other  has  not,  and 
so  still  rests  under  legal  obligations  to  fulfill  his  part.  Such  a 
contract  is  unilaterally  executory. 

Executory  contracts,  whether  unperformed  by  one  or  both, 
are,  as  to  the  parties,  who  have  not  performed  subsisting  prom- 
ises, which  are  taken  into  account  and  enforced  by  law. 

Executed  Contracts. 

Executed  contracts  are  those  which  have  been  fully  performed 
on  both  sides,  so  that  nothing  remains  to  be  done  under  them. 
It  is  frequently  held  that  full  execution  discharges  the  con- 
tract by  fulfillment,  and  so  destroys  it.  This  is  true  where  the 
agreement  is  regarded  simply  as  a  basis  of  legal  obligation ;  but 
when  the  agreement  is  looked  upon,  as  we  are  now  doing,  as  a 
means  of  creating,  modifying  or  destroying  legal  rights,  it  can 
not  be  dismissed  from  legal  consideration;  for  it,  though  per- 
formed as  a  promise,  is  still  the  basis  of  present  subsisting  legal 
rights. 

To  illustrate:  A  promises  to  sell  to  B  a  designated  thing  for 
one  thousand  dollars,  the  thing  to  be  delivered  in  thirty  days, 


SPECIAL   KINDS  OP   CONDUCT.  229 

and  the  money  to  be  paid  in  sixty  days.  Before  the  first  thirty 
days  expires  the  agreement  is  bilaterally  executory,  neither  party 
having  performed.  "When  the  thirtieth  day  comes  and  A  delivers 
the  thing,  he  performs  or  executes  his  part,  and  for  the  next 
thirty  days  the  contract,  from  A's  point  of  view,  is  unilaterally 
executed;  from  B's  point  of  view  it  is  unilaterally  executory. 
The  sixty  days  elapse,  and  B  pays.  The  contract  becomes  bilater- 
ally executed.  Nothing  more  is  to  be  done  under  it  by  either 
party,  and  in  that  sense  it  has  become  a  thing  of  the  past,  functus 
officio. 

But  the  agreement  had  a  wider  scope  than  simply  binding  each 
and  both  of  the  parties  to  do  something.  Its  real  design  was  to 
change  the  ownership  of  the  thing  which  was  sold.  Before  the 
contract  it  was  A 's ;  by  the  contract,  it  became  B  's.  This  owner- 
ship is  a  continuing  condition,  or  relation,  and  B  's  estate,  having 
grown  out  of  and  been  secured  by  the  contract,  is  a  continuing 
right;  and  the  contract  still  exists  as  the  basis  of  this  right. 
If  A  should  become  unmindful  of  his  agreement  and  sue  B  for  the 
thing,  B  would  interpose  A's  contract  of  sale  as  an  insurmount- 
able barrier  between  A  and  the  reclaiming  of  the  thing.  So,  as  a 
muniment  of  title  and  basis  of  right,  the  executed  contract  still 
lives.  The  continuing  nature  of  the  executed  contract  to  sell  is 
readily  apparent,  as  a  basis  of  this  right.  The  same  is  true  when 
considered  as  a  prevention  of  or  defense  against  liability.  Sup- 
pose, in  the  case  put,  B  should  afterward  want  his  thousand  dol- 
lars back,  and  sue  A  for  it,  saying  the  money  was  his  and  he  let 
A  have  it,  and  now  he  was  entitled  to  have  it  repaid.  A  could 
reply  to  him :  ' '  You  let  me  have  the  thousand  dollars  at  the  time 
claimed,  but  you  did  so  in  the  discharge  of  your  liability  under 
your  agreement,  and  that  agreement  entered  into  your  conduct 
in  paying  and  into  mine  in  receiving  the  money,  and  in  this  sense 
and  for  this  purpose  it  still  lives  and  must  be  recognized.  You 
can  not  get  bach  your  money. "  So  we  must  fix  in  our  minds  that 
whatever  words  and  forms  of  expression  we  use,  contracts  do  not 
drop  out  of  the  business  life  of  the  world,  or  of  the  law's  cogni- 
zance, simply  because  they  have  been  fully  performed  by  both 
parties. 

Express  Contracts. — Express  contracts  are  those  in  which  all 
the  terms  are  definitely  understood  and  expressly  stated  in  words. 


230  AMERICAN   ELEMENTARY   LAW. 

They  may  be  either  written  or  oral.  In  such  agreements  nothing 
is  left  for  presumption  or  implication  and  the  intent  of  the  par- 
ties and  their  consequent  rights  and  obligations  are  determined 
by  the  language  used  between  them. 

Implied  Contracts. — These  are  dealt  with  as  of  two  kinds,  con- 
tracts implied  in  fact  and  contracts  implied  in  law. 

Contracts  Implied  in  Fact. — Contracts  implied  in  fact  are  those 
in.  which  the  minds  of  the  parties  have  really  met  though  some 
of  the  terms  of  the  agreement  have  not  been  expressed  in  words 
but  are  clearly  indicated  by  other  conduct  of  the  parties,  inter- 
preted by  the  customs  and  habits  of  the  parties  and  of  the  com- 
munity in  which  they  live.  In  such  cases  the  terms  of  the  agree- 
ment not  expressed  in  words  are  gathered  or  implied  from  all  the 
facts  and  circumstances  of  the  case.  These  are  really  the  only 
true  implied  contracts. 

The  distinction  between  the  two,  express  and  implied  contracts, 
may  be  made  clearer  by  illustration.  Thus,  if  A  goes  to  B's  store 
and  says  "I  wish  to  buy  this  sack  of  flour,"  pointing  out  a  par- 
ticular sack,  "and  will  give  you  two  dollars  for  it  tomorrow  if 
you  will  send  it  to  my  house  this  morning,"  and  B  says,  "All 
right.  I  will  send  the  flour."  This  is  an  express  oral  contract. 
Its  parties,  subject  matter,  and  terms  are  all  shown  conclusively 
by  the  language  used.  There  is  nothing  left  to  be  added  by 
implication. 

If  B  owns  a  store  and  A  is  in  the  habit  of  buying  goods  from 
him  on  a  credit  and  A  goes  to  the  store  and  says  to  B  "Send  a 
sack  of  good  flour  to  my  house  and  charge  it  to  me,"  and  B  says 
"All  right,  I  will  do  so."  Clearly  there  is  an  agreement  here. 
A  portion  of  it  is  expressed  in  words.  A  has  indicated  his  desire 
and  offer  to  buy  from  B  a  sack  of  good  flour  to  be  delivered  at 
A's  house  within  a  reasonable  time,  and  to  pay  to  B  its  fair 
market  value  according  to  the  course  of  business  dealing  between 
them.  B  has  accepted  A's  offer  and  indicated  his  purpose  to  sell 
A  the  sack  of  flour  on  the  terms  proposed.  Still  the  agreement 
did  not  in  language  indicate  the  amount  that  A  was  to  pay  or 
when  payment  was  to  be  made.  As  to  these  two  items  the  agree- 
ment is  indefinite,  but  it  is  perfectly  plain  that  A  intended  to 
pay  something  for  the  flour  at  some  time.  The  law  permits  a 
jury  to  interpret  the  conduct  of  the  parties  reasonably,  according 


SPECIAL   KINDS   OP    CONDUCT.  231 

to  the  customs  and  course  of  dealing  between  them  and  make 
these  indefinite  terms  to  the  contract  certain.  Still  it  cannot 
be  designated  an  express  contract  and  is  known  as  an  implied 
contract.  Speaking  a  little  more  accurately,  it  is  a  contract 
implied  as  a  fact  from  the  conduct  of  the  parties.  "When  the 
terms  are  thus  implied  as  facts  the  legal  effect  of  the  contract  is 
just  the  same  as  if  all  its  terms  had  been  set  out  in  the  most  ac- 
curate language. 

Contracts  Implied  in  Law. — There  is  another  class  of  so-called 
implied  contracts,  usually  designated  as  contracts  implied  in  law 
or  quasi-contracts.  These  arise  from  states  of  fact  in  which  it 
is  apparent  that  no  agreement,  definite  or  indefinite  was  entered 
into  between  the  parties  but  which  are  of  such  nature  that  com- 
mon honesty  requires  that  the  parties  should  be  compelled  to 
adjust  their  rights  and  duties  just  as  if  a  contract  had  existed 
between  them.  They  really  are  not  contracts  at  all,  but  are 
states  of  fact  to  which  the  law  arbitrarily  applies  the  fiction  of 
agreement  and  compels  settlement  between  the  parties  as  if  they 
had  agreed  to  do  what  the  law  conclusively  finds  they  should 
have  agreed  to  do. 

Agreements  Not  Resulting  in  Contract. 

The  next  question  for  consideration  is :  Are  agreements,  lack- 
ing some  one  or  more  of  the  characteristics  essential  to  contracts, 
ever  sufficient  to  create,  modify,  or  terminate  legal  rights?  If  we 
consider  agreements  strictly  and  simply  as'  such,  they  are  not. 
No  agreement,  not  constituting  contract,  and  entirely  unexecuted 
on  both  sides,  is  ever  enforcible  in  law  or  equity. 

"While  this  is  true,  still  such  agreement,  aided  by  other  facts, 
does  frequently  create,  change,  or  destroy  rights.  We  will  con- 
sider, briefly  and  in  order,  agreements  lacking  one  of  the  essential 
elements  of  a  contract,  and  ascertain,  if  we  can,  the  circumstances 
under  which  they  have  the  effect  indicated,  and  the  reason  for  giv- 
ing such  effect. 

Agreements  Lacking  Competent  Parties. 

A  perfect  contract,  binding  alike  on  both  parties,  can  not  exist 
except  as  between  two  or  more  parties,  all  of  whom  are  capable,  in 
law,  of  assuming  obligations.  This  idea  is  frequently  expressed 
by  saying  that  contracts  must  be  mutual,  and  that  an  undertaking 


232  AMERICAN  ELEMENTARY  LAW. 

which  seeks  to  bind  only  one  of  the  parties  and  leaves  the  other 
unbound  is  not  binding  upon  either.  This  is  the  general  rule. 
Agreements,  otherwise  good,  are  not  usually  void  because  one 
party  is  under  legal  disability,  but  the  capable  person  can  be 
compelled  to  comply,  if  the  incapable  one  shall  perform  his  part, 
or  tender  to  do  so.  This  is  true  as  to  all  classes  of  natural  per- 
sons. It  is  not  true  of  corporations  which  have  entered  into 
agreements  which  they  are  not  authorized  to  make.  These,  so 
long  as  executory  on  both  sides,  are  void. 

If  the  incapacity  be  infancy,  and  if  the  contract  be  for  neces- 
saries, both  are  bound,  but  if  the  contract  is  not  for  necessaries 
the  adult  is  bound,  though  the  infant  may  repudiate  it  at  the 
time  and  under  such  rules  as  to  restitution  as  the  law  prescribes. 

If  the  incapacity  be  mental  unsoundness,  if  the  contract  be  for 
necessaries,  both  are  bound.  If  not  for  necessaries,  the  capable 
person  is  bound  and  also  the  incapable  one,  unless  the  capable  one 
knew  of  the  mental  unsoundness  of  the  other,  or  he  had  been 
legally  adjudged  unsound.  In  either  of  the  latter  events,  the 
contract  can  be  repudiated  by  the  incapable  person.  If  the  capa- 
ble one  acted  in  good  faith,  restitution  must  be  made,  so  far  as 
may  be. 

If  the  incapacity  be  coverture,  the  contract  is  binding  upon 
the  capable  party;  and,  if  executed  and  evidenced  in  due  form  of 
law,  it  is  binding  upon  the  married  woman  also.  If  it  be  execu- 
tory as  to  the  woman,  she  can  not  be  compelled  to  perform,  unless 
it  be  for  necessaries  for  herself  or  children,  or  for  the  benefit  of 
her  separate  estate. 

If  the  contract  be  with  a  corporation,  and  is  simply  unauthor- 
ized, and  has  been  performed  by  either  party,  the  other  can  com- 
pel performance  or  restitution.  This  last  doctrine  is  an  im- 
portant one,  and  needs  some  elucidation.  Corporations  are  au- 
thorized only  to  do  the  acts  and  transact  the  busincs  covered  by 
their  charters.  If  they  enter  into  an  agreement  to  do  an  act  not 
embraced  in  their  charter,  this  agreement,  so  long  as  executory 
on  both  sides,  is  absolutely  nonenforcible.  If  it  is  performed  by 
either  the  corporation  or  the  other  party,  the  one  so  performing 
can  compel  performance  by  the  other;  that  is,  the  unauthorized 
agreement  is  validated  by  unilateral  performance.     This  is  the 


SPECIAL  KINDS  OF  CONDUCT.  233 

rule  fixed  by  the  weight  of  authority,  including  the  Supreme 
Courts  of  the  United  States  and  most,  if  not  all,  of  the  States. 

The  peculiarity  is  not  in  the  rule  or  its  results,  but  in  the 
reason  given  for  it.  The  prevailing  custom  is  to  say  that  the  one 
who  has  received  the  benefits,  under  the  agreement,  is  estopped 
to  set  up  the  want  of  legal  power  in  its  execution.  The  standard 
definitions  of  estoppel  all  include  the  idea  of  deception.  He  who 
has  deceived  another  to  his  prejudice  can  not  be  heard  to  con- 
trovert the  truth  of  his  own  former  statement,  is  its  basic  prin- 
ciple. In  the  class  of  cases  now  under  consideration,  the  element 
of  deception  is  almost  always  lacking.  The  courts  pay  little,  if 
any  attention  to  its  presence  or  absence,  but  enforce  the  agree- 
ments, or  require  restitution,  as  well  in  those  cases  in  which  both 
parties  have  been  equally  cognizant  or  equally  ignorant  of  the 
facts  as  in  those  in  which  there  has  been  deception.  So,  in 
reality,  they  are  not  cases  of  estoppel  at  all,  but  are  illustrations, 
pure  and  simple,  of  the  law's  requirement  of  common  honesty 
in  business  dealings,  where  there  is  no  element  of  affirmative 
illegality  in  the  transaction. 

Recapitulating,  we  find  that  a  fully  executed  agreement  be- 
tween a  capable  person  on  one  side  and  an  incapable  one  on  the 
other  is  good,  as  against  the  capable  person.  It  is  good  as  against 
the  incapable  person,  if  she  be  a  married  woman  and  the  agree- 
ment is  executed  in  the  forms  of  law.  If  the  incapable  be  an 
infant,  or  person  of  unsound  mind  and  the  agreement  be  for 
necessaries,  it  is  good.  If  it  be  not  for  necessaries,  the  infant 
can  repudiate  it,  in  a  reasonable  time  after  his  majority,  by  mak- 
ing restitution  of  such  of  the  proceeds  as  he  had  when  he  attained 
his  majority.  If  it  be  not  for  necessaries,  the  person  of  unsound 
mind  can  repudiate  it  by  making  restitution,  as  far  as  in  his 
power,  if  the  other  party  knew  of  the  mental  unsoundness  and 
acted  in  good  faith.  If  he  did  not  act  in  good  faith,  complete 
resi  oration  is  not  required.  If  the  unsoundness  was  not  known 
to  the  capable,  and  had  nol  been  judicially  declared,  the  agree- 
ment will  be  enforced.  If  the  party  be  a  corporation,  and  the 
agreemenl  simply  unauthorized,  its  execution  vests  the  rights  of 
the  parties,  and  neither  can  avoid  it. 

If  the  agreemenl  is  between  natural  persons,  and  is  executory, 
it  is  binding  upon  the  capable  person,  but  not  on  the  incapable. 


234  AMERICAN  ELEMENTARY  LAW. 

If  it  has  been  performed  by  the  incapable  party,  he  can  compel 
performance  by  the  capable  one,  or  he  may  repudiate  it,  under 
the  rules  as  to  restitution  given  as  above.  If  it  has  been  per- 
formed by  the  capable,  he  can  not  repudiate  it  nor  compel  resti- 
tution, under  the  doctrines  stated  above. 

If  the  agreement  is  with  an  artificial  person,  and  beyond  its 
powers,  neither  party  is  bound,  if  entirely  executory ;  but  if  fully 
executed,  both  are  bound.  If  unilaterally  executed,  its  enforce- 
ment can  be  compelled  by  the  party  performing,  subject  to  the 
right  of  the  other  to  restore  what  has  been  received  under  the 
agreement.  These  seem  to  be  the  rules  as  to  change  of  rights  and 
assumption  of  liability  by  agreement  which  falls  short  of  per- 
fect contract,  because  of  lack  of  legally  competent  parties. 

Agreements  Lacking  Consideration. — These  agreements  should 
be  considered  under  three  heads:  (1)  Ordinary  common  law 
agreements  not  under  seal,  (2)  Common  law  agreements  under 
seal,  and  (3)  Agreements  of  the  Law  Merchant. 

(1)  It  is  a  thoroughly  established  doctrine  that  an  unsealed, 
executory  Common  Law  agreement  is  not  enforceable  unless  it  has 
legal  consideration.  So  long,  therefore,  as  such  an  agreement 
remains  executory  it  cannot  be  the  basis  of  legal  right  or  liability. ,- 
It  does  not  follow,  however,  that  when  such  agreement  has  been 
voluntarily  performed  it  does  not  affect  legal  rights.  Just  the 
opposite  is  true.  Such  an  agreement,  fully  executed,  will  vest 
legal  rights,  although  but  for  the  voluntary  performance  it  would 
have  been  without  legal  effect. 

To  illustrate :  if  one  person  promises  to  give  a  designated  thing 
to  another  and  the  latter  agrees  to  receive  it,  this  agreement, 
while  it  remains  executory  is  unenforceable  at  law  or  in  equity 
because  there  is  no  consideration  supporting  it.  But,  if  in  pur- 
suance of  the  promise  the  donor  delivers  the  thing  to  the  donee, 
the  title  passes  to  the  donee  and  the  donor  cannot  reclaim  it. 
Stating  it  tersely,  a  promise  to  give  is  not  enforceable ;  a  consum- 
mated gift  passes  title.  Under  some  circumstances  third  persons 
who  have  just  debts  against  the  donor  may  follow  the  gift  into 
the  hands  of  the  donee  and  subject  it  to  the  payment  of  the 
donor 's  debts,  but  as  betwTeen  donor  and  donee  the  title  has  passed 
as  irrevocably  as  it  would  upon  the  sale  of  the  article. 


SPECIAL  KINDS  OF  CONDUCT.  235 

One  of  the  most  interesting  classes  of  agreements  unsupported 
by  consideration  comes  under  the  general  head  of  license.  Li- 
cense, in  its  broad  sense,  is  very  comprehensive,  covering  and 
giving  legal  character  to  that  large  part  of  human  activity,  lying 
between  conduct  in  the  exercise  of  the  legal  right  of  the  actor  on 
the  one  hand,  and  conduct  violative  of  the  legal  rights  of  other 
persons  on  the  other.  In  this  broad  sense  the  subject  does 
not  come  within  our  present  topic. 

We  are  here  concerned  only  with  those  licenses  which  arise  by 
agreement  with  the  licensor,  unsupported  by  any  legal  con- 
sideration from  the  licensee.  Such  licenses  are  perfect  examples 
of  the  kind  of  agreements  now  under  discussion  and  follow  the 
general  rules  of  law  governing  them.  We,  therefore,  find  that 
an  unperformed  or  executory  license  is  without  legal  force  as 
to  the  future  and  may  be  revoked  at  the  will  of  the  licensor,  and 
further,  that  a  license  which  has  been  fully  performed,  has  en- 
tered as  a  fact  into  the  lives  and  relations  of  the  licensor  and 
licensee,  and  has  fixed  permanently  the  legal  nature  of  the  acts 
performed  under  it,  and  cannot  be  disregarded  by  the  licensor  or 
by  the  courts  in  determining  the  legality  of  such  action. 

If  the  license  was  designed  to  extend  over  a  series  of  acts  or  a 
period  of  time,  and  is  unsupported  bj^  a  consideration,  but  has 
been  acted  on  to  some  extent  or  for  a  portion  of  the  contemplated 
time  but  not  fully,  it,  and  the  rights  of  parties  under  it,  are  sub- 
ject to  both  the  rules  of  law  just  stated ;  that  is,  such  license  is 
subject  to  revocation  at  the  will  of  the  licensor  without  creating 
any  liability  on  his  part,  but  it  will  nevertheless  be  a  complete 
defense  for  any  action  taken  by  the  licensee  thereunder,  before 
revocation. 

(2)  Common  Law  agreements  under  seal  are  said  to  import 
consideration  and  be  enforceable.  The  form  of  the  agreement 
gives  it  higher  dignity  and  it  will  be  enforced  by  the  courts  even 
though  it  is  an  executory  promise.  Whether  this  validity  is 
conclusive,  and  lack  or  failure  of  consideration  can  not  be  plead 
or  proved  againsl  such  an  instrument  or  is  merely  prima  facie, 
permitting  the  agreement  to  be  avoided  by  proof  of  lack  or  fail- 
ure of  consideration,  in  the  earlier  periods  of  the  law,  is  not  clear. 
The  tendency  of  the  later  cases  and  the  weight  of  American  au- 


23 G  AMERICAN  ELEMENTARY  LAW. 

tliority  is  to  the  effect  that  the  seal  is  only  prima  facie  evidence 
3f  consideration  and  that  by  proper  pleading  and  proof  the  agree- 
ment can  be  avoided  either  for  lack  of  or  for  failure  of  consider- 
ation. In  many  States  the  doctrines  regarding  sealed  instru- 
ments have  been  abolished  or  modified  by  statute.  Some  of  the 
statutes  bring  the  sealed  instrument  down  to  the  level  of  other 
written  agreements,  while  others  raise  the  unsealed  instrument 
up  to  parity  with  the  sealed. 

Sealed  instruments  which  have  been  fully  executed  effectively 
pass  legal  rights,  whether  they  were  originally  supported  by  con- 
sideration or  not. 

(3)  There  are  certain  kinds  of  contracts  for  the  payment  of 
certain  sums  of  money  at  a  certain  time,  known  as  promissory 
notes,  bills  of  exchange,  and  checks  which  may  be  made  payable 
to  a  designated  person  or  his  order,  or  to  bearer.  These  are  called 
negotiable  instruments,  and  pass  from  hand  to  hand  like  money. 
They  are  not  Common  Law  contracts,  but  of  the  Law  Merchant. 
That  is,  the  Common  Law,  which  is  a  purely  English  product, 
did  not  recognize  such  contracts.  But  the  merchants  of  Con- 
tinental Europe  found  them  exceedingly  useful  in  their  business 
enterprises,  and,  by  their  habit  of  dealing,  introduced  and  used 
them  among  themselves.  Gradually  their  business  convenience 
was  recognized  in  London  and  other  English  cities  and  more 
gradually  still  the  English  law  adopted,  to  some  extent,  the  cus- 
tom or  law  of  the  merchants  and  made  it  a  part  of  the  law  of  the 
realm. 

The  Law  Merchant  did  not  regard  consideration  as  a  necessary 
part  of  a  contract,  and  in  the  adjustment  of  the  two  systems,  a 
compromise  was  made  on  this  subject,  the  result  of  which  is  sub- 
stantially this :  As  between  the  original  parties  to  the  instrument 
and  all  others,  except  innocent  purchasers  for^value  and  without 
notice,  consideration  is  necessary  to  the  validity  of  the  promise ; 
but  the  existence  of  consideration  will  be  presumed,  unless  its 
want  or  failure  be  shown.  As  between  the  payors  of  the  instru- 
ment and  one  purchasing  it  in  due  course  of  trade  before  its 
maturity,  paying  value  for  it  and  having  no  notice  of  the  ab- 
sence of  consideration,  this  presumption  of  consideration  is  con- 
clusive, and  the  payors  are  not  allowed  to  show  its  absence. 

Agreements  Defective  in  Form. — Ordinarily,  in  American  law, 
contracts,  otherwise  mgeting  the  requirements  of  the  law,  are 


SPECIAL  KINDS  OF  CONDUCT.  237 

valid  without  reference  to  the  means  by  which  they  are  evidenced. 
That  is,  in  the  great  majority  of  instances,  the  law  does  not  pre- 
scribe any  particular  methods  by  which  the  agreements  of  par- 
ties shall  be  created  or  evidenced ;  but  any  manner  of  manifesting 
the  agreement,  whether  by  written  or  spoken  words,  or  by  con- 
duct, is  sufficient.  There  are,  however,  numerous  agreements  as 
to  which  the  law  does  prescribe  certain  formalities,  namely :  ex- 
pression in  written  words,  duly  executed  by  the  persons  to  be 
bound.  Most  of  these  requirements  are  embraced  in  the  enact- 
ments known  as  the  Statutes  of  Fraud.  The  purpose  of  such 
enactments  is  to  give  certainty  and  permanence  to  such  contracts, 
and  thus  to  guarantee  to  all  parties  to  them  the  quiet  and  secure 
enjoyment  of  their  rights  thereunder.  These  statutes  are  of 
English  origin.  These  English  statutes  are  not  recognized  as 
Common  Law,  and  so  are  not  of  force  in  America.  Desiring  to 
enjoy  the  benefits  arising  from  their  general  provisions,  the  sev- 
eral American  States  have  enacted  laws  covering  their  main 
features,  though  differing  in  their  scope  and  details. 

These  statutes  usually  require  all  contracts  for  any  of  the 
following  purposes  to  be  in  writing: 

( 1 )  All  conveyances  of  land,  or  estates  in  land,  for  longer  than 
a  designated  period. 

(2)  All  undertakings  by  one  person  to  answer  for  the  debt, 
default,  or  miscarriage  of  another. 

(3)  All  contracts  not  to  be  performed  within  one  year. 

(4)  All  contracts  by  the  representatives  of  the  estate  of  a 
deceased  person,  to  become  personally  responsible  for  the  debts  of 
the  deceased. 

In  some  States  other  classes  of  agreements  such  as  contracts  in 
consideration  of  marriage  and  sales  of  goods,  etc.,  of  a  designated 
minimum  value,  are  embraced ;  but  the  four  classes  named  above 
are  the  ordinary  and  typical  requirements. 

We  are  not  now  considering  the  construction  of  these  several 
statutes,  nor  to  what  class  of  contracts  they  apply,  but  this :  If  it 
be  conceded  that  the  statute  does  apply  and  has  not  been  com- 
plied with  in  a  particular  agreement,  may  such  an  agreement  still 
be  effective  to  create,  modify,  or  terminate  legal  rights? 

In  a  few  cases,  arising  under  the  first  subdivision  given  above, 
relating  to  conveyance  of  land,  such  an  agreement  does  have 
such  effect.     If  one  person  shall  sell  to  another  a  designated 


238  AMERICAN  ELEMENTARY  IAW. 

parcel  of  land  and  put  him  in  possession  of  it,  or  acquiesce  in  his 
taking  and  holding  possession,  and  the  purchaser  shall  pay  all  the 
purchase  money  and  make  improvements  on  the  land,  the  agree- 
ment to  sell  will  be  enforced  and  the  seller  be  forced  to  make  a 
written  conveyance  of  the  property.  The  reason  given  by  the 
courts  in  announcing  this  rule  is  that  the  statute  was  enacted  to 
prevent  the  perpetration  of  fraud,  and  that  to  insist  upon  the 
letter  of  the  statute  under  the  facts  as  set  out  above  would  be 
to  make  it  the  instrument  of  its  own  overthrow  and  work  a  prac- 
tical defeat  of  the  legislative  purpose  in  passing  the  law.  This 
is  but  another  long  way  of  saying  that  one  must  observe  common 
honesty  in  his  dealings.  I  do  not  mean  to  convey  the  idea  that 
this  principle  is  always,  and  under  all  circumstances,  recognized 
and  enforced  by  the  law,  but  that  it  is  one  of  its  cardinal  prin- 
ciples, and  is  one  which,  year  by  year,  is  coming  to  have  more 
influence  both  in  statutory  enactment  and  in  judicial  decision, 
and  that  the  world's  progress  in  intelligence  and  moral  develop- 
ment is  gradually  establishing  this  as  the  standard  of  conduct  in 
business  affairs. 

There  seem  to  be  no  relaxations  of  the  statutory  rules  in  agree- 
ments falling  under  the  second,  third,  or  fourth  subdivisions. 
The  only  relief  given  as  to  them  has  been  in  the  construction  of 
the  statutes  and  the  refusal  to  apply  them  in  cases  in  which  mani- 
fest injustice  would  result,  if  the  application  could  be  avoided 
I  iy  any  fair  interpretation. 

Agreements  Lacking  Legality  of  Purpose. — The  rule  here  is 
that  "from  a  violation  of  the  law  no  cause  of  action  can  arise" 
in  behalf  of  the  wrong-doer.  This  maxim,  and  the  principle  on 
which  it  is  founded,  render  unenforeible  all  executory  agreements 
tainted  with  unlawfulness  of  purpose  in  mind  of  both  parties. 
This  is  true  not  only  when  the  agreement  is  bilaterally  executory, 
but  also  in  cases  of  unilateral  execution.  The  one  who  has  per- 
formed his  part  of  the  contemplated  wrong  can  not,  by  reason  of 
his  wrong-doing,  compel  the  other  either  to  go  forward  with  the 
agreement  or  to  restore  what  he  has  received  under  it.  The  same 
holds  true  in  cases  of  bilateral  performance.  Neither  party  can 
get  relief  against  the  other,  because  each,  being  a  wrong-doer  in 
the  very  matter  out  of  which  he  claims  that  his  right  has  arisen, 
has,  as  to  enforcement  or  rescission  of  the  agreement,  put  him- 


SPECIAL  KINDS  OF  CONDUCT.  239 

self  without  the  pale  of  the  law,  and  has  no  standing  in  court. 
The  law  leaves  both  parties  to  such  an  agreement  just  where  they 
have  put  themselves,  and  will  not  interfere  between  them. 

From  this  it  follows,  as  a  consequence,  though  not  as  an  in- 
tended or  desired  one,  that  such  agreements,  so  far  as  executed, 
are  sufficient  basis  for  legal  rights  created  thereby.  Take  the 
familiar  example  of  a  debtor  who  desires  to  defraud  his  creditors 
and  who,  for  such  purpose,  transfers  property  to  a  third  person, 
to  prevent  its  seizure  and  sale  for  his  debts.  This  intent  to  de- 
fraud is  unlawful,  and  both  of  the  parties  to  the  conveyance 
having  participated  in  it,  neither  can  come  into  court  and  main- 
tain a  suit  for  its  enforcement.  Nor  can  the  debtor,  after  he  has 
compromised  or  otherwise  relieved  himself  of  his  just  debts,  com- 
pel the  fraudulent  holder  of  the  property  to  restore  it  to  him. 
He  can  maintain  no  suit  on  the  fraudulent  agreement  either  to 
enforce  it  or  set  it  aside.  The  title,  therefore,  as  between  the 
parties  to  the  fraud,  remains  where  they  placed  it.  Nor  could  a 
third  party,  not  affected  by  the  fraud,  dispute  the  title  of  the 
grantee.  It  is  no  business  of  his  how  the  property  was  acquired. 
If,  however,  the  creditor  whom  both  the  grantor  and  the  grantee 
designed  to  defraud  should  ascertain  the  facts,  he  could  proceed 
against  the  property  for  his  debt,  establish  the  fact  that  it  was 
sold  to  defraud  him,  and  subject  it  to  the  payment  of  his  debt, 
The  same  is  true  of  other  agreements  having  unlawful  purposes, 
as  between  the  parties  they  cannot  be  made  the  basis  of  litigation, 
but  the  law  leaves  each  without  remedy  as  against  the  other.  As 
to  third  parties  not  included  in  or  specially  affected  by  the  unlaw- 
ful design,  they  are  good,  as  basis  of  property  rights.  As  against 
persons  sought  to  be  injured  thereby,  they  are  inoperative. 

Conduct  Lacking  Element  of  Assent  and  Yet  Dealt  with  as  if 
Contract.  Quasi-Contrdcts. — The  condition  stated  in  the  para- 
graph heading  is  an  anomaly,  yet  it  is  an  existing  one  in  England 
and  those  jurisdictions  in  which  the  methods  of  judicial  procedure 
are  based  upon  the  Common  Law.  There  are  two  grand  divisions 
of  the  law:  the  first  embracing  the  rules  governing  substantive 
rights,  and  the  second  those  covering  remedial  process  or  pro- 
cedure. These  necessarily  act  and  react  upon  each  other.  As  a 
substantive  right  has  no  beneficial  existence  unless  the  law  of 
procedure  gives  a  practical  remedy  for  its  violation,  absence  of 


240  AMERICAN  ELEMENTARY  LAW. 

remedy  is  fatal  to  its  enjoyment.  In  this  way  the  substantive 
law  is  limited  by  the  law  of  remedy. 

At  an  early  day  the  remedial  process  of  the  Common  Law  be- 
came fixed.  There  were  certain  established  methods  of  procedure, 
called  forms  of  action.  Each  of  these  began  with  its  appropriate 
writ  and  concluded  with  its  appropriate  judgment.  The  form 
of  each  of  these  writs  was  fixed  and  unchangeable.  This  writ 
determined  the  method  of  procedure  in  the  case  and  the  nature 
of  the  remedy  which  could  be  granted.  If  a  party  had  a  sub- 
stantive right  which,  according  to  these  forms  of  action,  should 
have  been  protected  by  an  action  of  one  kind  and  he  erred  in  the 
selection  and  attempted  to  establish  his  right  in  another  form 
of  action,  the  mistake  was  fatal,  and  no  remedy  at  all  could  be 
obtained.  He  could  not  recover  the  remedy  appropriate  to  his 
right,  because  the  fixed  form  of  action  to  which  he  had  resorted 
did  not  permit ;  he  could  not  recover  the  remed}^  appropriate 
to  the  form  of  action  because  his  right  did  not  entitle  him  to 
that. 

These  forms  of  action  were  grouped  into  two  classes:  those 
i  .r-i  nnliiK  hi  and  those  ex-delicto,  between  which  there  was  a 
great  gulf  fixed.  In  the  first  group  were  put  all  actions  for 
breach  of  contract,  and  in  the  second  all  for  tort.  The  fixed 
forms  of  procedure  were  binding  upon  the  courts,  but,  fortu- 
nately, they  were  not  binding  upon  the  social  and  business  world; 
these  continued  to  develop  and,  in  their  development,  new  com- 
binations of  fact  and  new  rights  and  duties  necessarily  arose. 
These  rights  were  not  always  adjusted  between  the  parties,  and 
resort  to  the  courts  became  essential.  Under  this  pressure  the 
courts  were  constrained  to  do  substantial  justice,  notwithstanding 
the  forms  of  action  and  adopted  legal  fictions.  Instead  of  chang- 
ing the  rules  of  procedure,  they  would  declare,  as  a  matter  of 
law,  that  things  were  true  which  they,  and  everyone  else,  knew 
were  not  true,  and  by  this  fiction  would  bring  a  case  within  a 
given  form  of  action,  when,  in  reality,  it  did  not  belong  there. 

This  was  the  process  in  the  matter  under  consideration.  Cer- 
tain states  of  fact  arose  for  which  the  forms  of  action  provided 
for  breach  of  contract  were  convenient  and  appropriate,  but  they 
could  not  be  used  because,  as  soon  as  it  developed  on  the  trial 
that  the  rights  of  the  parties  were  not  based  upon  contract,  the 


SPECIAL   KINDS  OF   CONDUCT.  241 

case  would  be  thrown  out.  To  obviate  this  the  courts  said:  "We 
will  adopt,  in  advance,  the  legal  fiction  that  these  facts  are  to 
be  dealt  with  as  if  the  parties  had  entered  into  certain  agree- 
ments, and  the  objection  that  they  did  not  shall  not  be  consid- 
ered." This  course  of  dealing  led  to  the  name  quasi-contracts, 
that  is,  facts  not  really  constituting  contract  but  which,  by  fiction 
of  law,  are  dealt  with  as  if  they  did.  We  can  readily  forgive  the 
legal  fiction  and  its  adoption,  in  this  instance,  for  the  very 
laudable  purpose  for  which  it  was  indulged  in,  viz. :  jthe  prompt 
administration  of  practical  justice.  Professor  Keener,  in  his 
work  on  Quasi-Contract,  says  that  the  principle  upon  which  the 
whole  doctrine  is  based  is  ' '  that  one  person  should  not  be  allowed 
unduly  to  enrich  himself  at  the  expense  of  another."  This  is  a 
good  statement  of  the  rule,  within  the  limitations  put  upon  by  it 
by  the  author,  and  it  ought  ever  to  be  enforced.  However,  it 
arvims  to  me  but  a  special  application  of  the  broader  doctrine  of 
common  honesty. 

The  cases  dealt  with  as  quasi-contract  are  so  different  in  their 
facts  that  it  is  difficult  to  generalize  from  them,  but  they  all  pre- 
sent these  features :  One  or  more  persons,  by  some  course  of  con- 
duct, obtain  an  advantage  over  another  or  others,  so  unjust  and 
so  unconscionable  as  to  shock  the  moral  sense  of  the  man  of  av- 
erage judgment  and  conscience ;  and  the  law,  as  the  exponent  and 
authoritative  embodiment  of  common  judgment  and  conscience, 
will  not  permit  the  transaction  to  stand,  but  compels  an  adjust- 
ment of  the  equities  between  the  parties  in  such  way  as  may  be 
most  just,  under  all  the  circumstances. 
16 


CHAPTER  X. 

SPECIAL  KINDS  OF   CONDUCT  AFFECTING  LEGAL  RIGHTS  AND  DUTIES 

(CONTD.) 

NEGLIGENCE. 

Negligent  conduct  is  very  important  and  far  reaching  in  its 
consequences.  It  is  frequently  quite  as  hurtful  to  another  and 
his  rights  to  fail  to  observe  duties  due  to  him  as  to  do  him  affirm- 
ative injury.  Failures  to  discharge  specific  duties  are  most  fre- 
quently dealt  with  under  the  specific  heads  of  law  regulating  the 
rights  and  duties  involved,  and  are  not  now  under  consideration. 

After  dealing  with  these  specified  failures,  as  each  seems  to 
warrant,  declaring  a  great  many  things  that  must,  and  a  great 
many  other  things  that  must  not,  be  done,  the  law  admits  its 
inability  to  cover  all  kinds  of  objectionable  conduct,  or  at  least 
the  undesirability  of  attempting  to  do  so,  and  says  that,  in  ad- 
dition to  all  these  specific  rules,  the  fundamental  principle  that 
every  person  must  so  conduct  himself  and  so  use  his  own  as  not 
unduly  to  interfere  with  the  just  rights  of  others,  requires  that 
each  person  shall  observe  a  reasonable  degree  of  care  in  regu- 
lating himself  so  as  not  to  injure  other  persons.  This  reasonable 
care  being  thus  imposed  as  a  legal  duty,  failure  to  observe  it 
becomes  a  legal  wrong,  which  is  denominated  negligence. 

We  may,  therefore,  define  negligence  as  the  failure  to  observe 
that  degree  of  care  for  the  welfare  of  another  which  the  law 
enjoins  as  a  duty. 

It  must  be  noticed  that  the  gist  of  the  wrong  is  a  failure  to 
perform  duty  and  not  the  motive  which  prompts  the  failure ;  that 
is,  negligence,  in  a  legal  sense,  is  a  failure  to  observe  a  legally 
required  degree  of  care  for  the  welfare  of  others,  and  not  a  mental 
condition  or  attitude.  The  failure  may  result  from  inadvertence, 
forgetfulness,  misapprehension,  or  design;  but  the  law  does  not 
require  the  injured  party  to  look  into  the  mind  of  the  wrong-doer 
and  determine  at  his,  the  sufferer's,  peril  what  his,  the  wrong- 


SPECIAL   KINDS  OF   CONDUCT.  243 

doer's,  mental  attitude  really  was.  That  can  be  known,  cer- 
tainly, only  to  the  negligent  person,  and  to  require  the  sufferer  to 
prejudge  the  fact,  and  determine  whether  the  wrong  proceeded 
from  forgetfulness  or  willfulness,  and  thus  put  him  in  the  power 
of  his  adversary,  would  be  manifestly  unjust.  Therefore,  the 
law  says  the  wrong-doer  having  failed  to  use  the  degree  of  care 
required  for  the  protection  of  his  fellow,  must  make  good  to  him 
the  injury  he  has  sustained.  If,  in  any  particular  case,  there  be 
willful  intent  to  injure,  and  this  is  known  and  can  be  proved, 
it  will  subject  the  wrong-doer  to  larger  penalties  in. addition  to 
the  just  compensation  he  is  required  to  make. 

Sometimes  conduct  is  characterized  as  grossly  negligent.  This 
means  that  there  is  such  entire  absence  of  care  as  to  indicate  a 
wanton  and  reckless  disregard  of  the  rights  and  interests  of  others. 
In  a  few  instances  of  positive  written  law,  negligence  must  be 
gross  to  give  a  cause  of  action ;  but  this  is  rarely,  if  ever,  true, 
except  in  cases  of  positive  requirement  of  the  written  law. 

We  have  defined  negligence  as  the  failure  to  observe  that  de- 
gree of  care  for  the  welfare  of  another  which  the  law  requires  as 
a  duty.  The  question  necessarily  arises,  what  degree  of  care  is 
thus  required?  The  answer  is  obtained  by  resort  to  the  law's 
unit,  or  standard,  of  measurement,  the  average  man ;  and  we  find 
that  the  care  required  is  such  as  an  ordinarily  prudent  person 
would  have  exercised  under  the  facts  and  circumstances  of  the 
case.  So  universal  has  this  idea  become,  that  the  ordinary  defini- 
tions of  negligence  are  substantially  one  or  the  other  of  the 
following : 

Negligence  is  the  failure  to  use  that  degree  of  care  for  another 
which  a  reasonably  prudent  person  would  have  used  under  the 
circumstances;  or, 

Negligence  is  the  doing  some  act,  to  the  injury  of  another, 
which  a  reasonably  prudent  person  would  not  have  done,  under 
the  circumstances ;  or  the  failure  to  do  some  act  for  the  protection 
of  another  which  a  reasonably  prudent  person  would  have  done, 
under  the  same  circumstances. 

In  many  connections,  either  of.  these  definitions  is  practically 
correct,  and  many  charges  by  judges  to  juries  trying  cases  of  this 
kind  containing  one  or  the  other  have  been  commended.  They 
do  not,  however,  give  a  correct  general  conception  of  the  subject, 


244  AMERICAN   ELEMENTARY   LAW. 

for  the  following  reasons :  While  the  average  man,  or  man  of  or- 
dinary prudence,  which  is  the  same  thing  in  this  connection,  is 
always  the  law's  standard  by  which  to  measure  conduct,  still,  in 
some  cases,  the  application  of  the  standard  to  the  conduct  is  not 
left  to  be  made  by  judicial  officers  in  the  progress  of  a  trial,  but 
has  antecedently  been  made  and  the  result  announced  as  a  matter 
of  law. 

Sometimes  this  antecedent  application  and  annunciation  of  rule 
has  been  made  by  the  legislature,  as  in  case  of  a  railroad  train 
approaching  a  public  road-crossing.  Here  the  legislature  has 
determined  that  the  average  man,  in  control  of  appliances  as 
dangerous  as  a  railroad  train,  when  approaching  a  place  where 
others  have  equal  rights  with  himself,  would  give  reasonable 
notice  of  his  presence  and  intention.  It  therefore  declares,  by 
statute,  that  such  notice  must  be  given  by  certain  required  sig- 
nals, and  further  declares  that  failure  to  give  such  signals  is 
negligence. 

Sometimes  the  antecedent  application  and  announcement  has 
resulted  from  long  experience  and  numerous  litigations  and 
judicial  decisions,  which  have  become  established  precedents. 
Take,  for  illustration,  the  rules  governing  common  carriers  of 
persons.  There  are  no  statutory  provisions  on  the  subject,  but 
from  time  immemorial  such  carriers  have  been  doing  business, 
and  controversies  have  arisen  between  them  and  their  passengers, 
and  these  controversies  have  been  decided  by  the  courts.  By 
this  process  the  degree  of  care  which  an  ordinarily  prudent  per- 
son would  use  as  a  common  carrier  of  persons  has  been  deduced 
and  declared,  and  we  now  have  the  established  legal  rule  that 
it  is  the  highest  degree  of  practicable  care.  So,  in  trying  a  case 
of  this  kind,  the  judge  does  not  charge  the  jury  the  general 
proposition  that  the  carrier  must  use  such  care  as  an  ordinarily 
prudent  man  would  use  under  the  circumstances ;  but,  recognizing 
that  the  law  has  already  determined  that  an  ordinarily  prudent 
person,  acting  as  a  common  carrier  of  persons,  would  use  the  de- 
gree of  care  above  indicated,  the  highest  practicable,  charges  as 
a  matter  of  law,  that  the  particular  carrier  whose  conduct  is  under 
investigation  was  required  to  use  that  degree  of  care. 

These  illustrations  suffice  to  show  the  necessity  of  defining 
negligence  as  failure  to  use  legally  required  care,  and  leaving 


SPECIAL   KINDS  OF  CONDUCT.  245 

the  degree  of  care  in  particular  cases  to  be  indicated  in  the 
general  doctrine  of  the  care  of  the  average  man,  or  in  the  terms 
of  the  particular  rule  which  the  law  has  formulated  to  govern 
the  particular  class  of  cases,  as  the  nature  of  the  case  may  de- 
termine. 

FRAUD. 
General  Conception. 

Fraud  is  a  word  in  very  general  use.  In  ordinary  parlance  it 
means  deception  resulting  in  unfair  advantage  to  the  deceiver 
or  in  unfair  disadvantage  to  the  deceived.  It  is  the  deception 
resulting  in  hurt  that  really  constitutes  the  fraud,  though  the 
word  is  frequently  used  as  indicating  the  means  by  which  the 
deception  is  accomplished.  This  necessarily  results  in  confusion. 
It  is  therefore  essential  that  we  fix  in  mind  this  distinction,  that 
fraud  is  the  deception  and  not  the  means  by  which  the  deception 
is  brought  about. 

Again,  we  must  get  clearly  in  mind  that  fraud  is  deception 
and  not  the  motive  operating  in  the  mind  of  him  who  brings 
about  or  obtains  advantage  from  the  deception.  If  a  person 
makes  a  false  material  statement  knowing  it  to  be  false  and  in- 
tending thereby  to  influence  another  to  perform  some  act  which, 
will  be  of  undue  advantage  to  the  deceiver,  and  does  so  influence 
him,  the  transaction  is  undoubtedly  fraudulent.  Again,  if  a 
person  is  himself  deceived  as  to  a  matter  and  really  believes  a 
statement  to  be  true  when  it  is  not,  and  so  believing,  makes  the 
statement  to  another  thereby  desiring  to  influence  such  other  and 
induce  him  to  perform  a  certain  act  which  is  of  material  ad- 
vantage to  the  one  making  the  statement,  and  thus  induces  him 
to  whom  the  statement  is  made  to  do  the  act,  fraud,  though  not 
so  readily  apparent,  still  exists.  The  statement  is  false.  It  is 
made  to  influence  and  induce  action  by  the  party  to  whom  it 
is  made  which  he  would  not  have  taken  but  for  the  influence  of 
such  false  statement.  Under  its  influence,  he  acted  to  his  hurt, 
and  is  thereby  injured.  There  is  deception  as  to  a  material  point 
influencing  conduct  and  directly  resulting  in  hurt.  This  con- 
stitutes fraud.  It  is  true  that  there  was  no  intent  to  deceive 
at  the  time  the  statement  was  made,  no  intent  to  obtain  undue 
advantage,  but  each  of  these  results  has  in  fact  been  accomplished, 


246  AMERICAN   ELEMENTARY   LAW. 

and  the  injury  to  the  deceived  is  just  as  great  and  as  directly 
traceable  to  the  deception,  as  if  the  intent  to  deceive  existed. 

There  is  a  marked  difference  in  the  moral  nature  of  the  con- 
duct at  the  time  it  takes  place;  in  the  one  case,  at  the  time  the 
statement  is  made  the  man  making  the  statement  is  a  conscious 
and  intended  deceiver  designing  to  obtain  advantage;  in  the 
other  case,  he  is  himself  deceived  as  to  the  facts  and  does  not 
design  to  deceive  his  neighbor  or  to  profit  by  falsehood.  It  would 
be  quite  unjust  to  regard  him  as  intentionally  dishonest  at  the 
time  the  transaction  took  place.  If,  however,  when  the  facts 
become  known  to  him,  and  when  he  is  conscious  that  the  state- 
ment from  which  he  has  derived  material  advantage  is  false,  he 
continues  to  hold  to  this  advantage  and  refuses  to  make  proper 
adjustment  with  the  party  deceived,  he  is  equally  as  guilty  in 
morals,  as  if  the  intent  to  deceive  had  originally  existed  in  his 
mind.  We  may  therefore  conclude  that  he  who  innocently  de- 
ceives his  neighbor  to  the  latter 's  hurt,  and  refuses  to  make  proper 
adjustment  of  the  hurt  when  the  deception  becomes  known  to 
him,  is  as  morally  guilty  as  he  who  primarily  designed  to  deceive 
in  order  to  gain  personal  advantage. 

This  fact  is  not  always  recognized.  It  is  much  more  commonly 
accepted  now  than  it  was  in  the  earlier  stages  of  social  and 
ethical  development.  It  is  quite  probably  that  among  our  an- 
cestors centuries  ago  a  very  broad  distinction  existed  between 
the  two  and  that  the  present  recognition  of  their  moral  equality 
has  come  about  by  the  slow  processes  of  general  ethical  develop- 
ment. As  the  law  is  a  fairly  correct  register  of  the  public  con- 
science, this  development  in  moral  discernment  should  be  clearly 
traceable  in  the  growth  of  the  law. 

Legal  Conception. 

As  heretofore  stated  law  is  based  upon  morality  limited  by 
practicability.  The  morality  upon  which  any  system  of  laws 
rests  is  necessarily  that  of  the  law-maker,  and  in  governments 
where  the  law  is  made  by  the  people  it  represents  the  average 
morality  of  the  community,  limited  by  practical  considerations. 
From  this  point  of  view,  the  law  represents,  with  fair  accuracy, 
the  common  conscience  of  the  people  among  whom  it  obtains  so 
far  as  the  rules  of  conduct  approved  by  such  common  conscience 
can  be  practically  enforced  through  governmental  agencies. 


SPECIAL   KINDS   OF   CONDUCT.  247 

Common  Law  Conception. — The  general  principles  just  an- 
nounced and  their  operation  are  especially  apparent  in  the  rules  of 
law  and  of  equity  as  to  fraud.  In  the  beginnings  of  our  juris- 
prudence when  the  Common  Law  was  in  its  formative  state,  the 
English  people  recognized  that  it  was  morally  wrong  to  knowingly 
deceive  another  to  his  material  hurt.  Hence  the  Common  Law 
has  always  recognized  known  deception  as  to  a  material  fact  re- 
sulting directly  in  damage,  as  a  legal  wrong,  and  has  always  given 
a  remedy  therefor. 

This  rule  being  established  by  the  decisions  of  the  courts 
necessarily  came  within  the  doctrine  of  stare  decisis.  The  cases 
announcing  the  rule  became  precedents  and  the  exact  language 
used  in  the  decisions  of  the  courts  tended  strongly  to  limit  the 
law  and  prevent  remedy  for  fraud  unless  it  could  be  shown  in 
the  strictest  sense  that  the  party  charged  with  the  fraudulent 
statements  knew  them  to  be  false  at  the  time  he  made  them.  On 
the  other  hand,  the  just  demands  of  a  developing  people  for  rem- 
edy in  cases  not  within  the  exact  language  of  the  early  decisions 
grew  stronger  as  time  passed  on.  The  pressure  finally  became 
irresistible  and  relief  from  some  source  inevitable. 

The  first  relief  came  through  the  Common  Law  courts  by  the 
extension  of  the  meaning  of  the  words  known  and  knowingly  as 
used  in  the  ancient  opinions.  The  first  step  was  to  include  among 
known  false  statements  all  false  statements  made  by  a  party  as 
true,  when  he  did  not  really  know  whether  they  were  true  or 
false  but  believed  them  to  be  false.  This  can  hardly  be  called 
real  extension,  though  it  was  so  looked  upon  by  the  Common  Law 
judges.  In  such  a  case  there  is  every  element  of  moral  turpitude 
that  exists  in  the  case  of  a  known  false  statement.  The  person 
making  the  statement  is  really  ignorant  as  to  whether  it  is  true 
or  false,  but  he  believes  it  to  be  false,  yet  asserts  it  to  be  true 
in  order  to  obtain  advantage.  He  is  clearly  willing  to  deceive 
and  an  actual  deceiver,  and  is  morally  and  legally  on  an  equality 
with  him  who  makes  a  false  statement  knowing  it  to  be  false. 

The  next  enlargement  came  by  extending  the  words  known 
and  knowingly  so  as  to  include  statements  as  to  the  truth  or 
falsity  of  which  the  party  making  them  had  no  information  but 
which  he  believed  to  be  true  and.  to  support  this  belief,  stated 
that  they  were  true  as  of  his  personal  knowledge ;  thus  leading 
the  other  person  to  believe  that  he  had  investigated  the  matter 


248  AMERICAN   ELEMENTARY   LAW. 

and  found  the  statements  to  be  true,  and  was  affirming  their 
truth  as  the  result  of  such  investigation.  In  such  cases  there  is 
no  intent  to  deceive  as  to  the  main  fact  contained  in  the  statement, 
but  there  is  intent  to  deceive  as  to  the  means  of  information  upon 
which  the  statement  is  based,  and  by  this  incidental  deception  to 
increase  the  weight  and  influence  of  the  main  statement.  The 
Common  Law  very  justly  says  that  in  these  cases  there  exists  an 
intent  to  deceive  in  a  matter  so  inseparable  from  the  other  facts 
which  induce  action  by  the  injured  party,  that  it  is  impossible 
to  tell  to  what  extent  the  falsehood  really  influences  the  injured 
party,  and  that  this  unlawful  intent  vitiates  the  whole  transaction 
and  puts  it  upon  the  same  basis  as  a  known  false  statement  as 
to  a  material  fact. 

Further  than  indicated  in  the  last  two  paragraphs,  the  Com- 
mon Law  courts  of  England,  as  such,  do  not  seem  to  have  gone 
in  giving  relief  for  fraud. 

Recapitulating,  we  may  state  that  the  Common  Law  courts 
of  England  will  grant  relief  for  fraud  as  a  tort  only  in  cases  in 
which  the  party  making  the  false  statement  either, 

(1)  Knew  the  statement  to  be  false  at  the  time  he  made 
the  same,  or 

(2)  Did  not  know  whether  the  statement  was  true  or  false 
but  believed  it  to  be  false,  yet  stated  it  to  be  true,  or, 

(3)  Did  not  know  whether  the  statement  was  true  or  false 
but  believed  it  to  be  true  and  accompanied  such  state- 
ment by  the  assertion  that  he  knew  it  to  be  true. 

One  of  the  best  definitions  of  fraud  for  which  the  Common  Law 
courts  will  give  relief  is  that  given  by  Mr.  Anson  in  his  work-  on 
Contracts,  as  follows:  "Fraud  is  a  false  representation  of  fact, 
made  with  knowledge  of  its  falsity,  or  recklessly,  without  be- 
lief of  its  truth,  with  the  intention  that  it  be  acted  upon  by  the 
complaining  party,  and  actually  inducing  him  to  act  upon  it." 

C o.weption  in  Equity. — While  the  Common  Law  courts,  in 
deference  to  their  ancient  precedents  and  the  doctrine  of  stare 
decisis,  have  never  gone  beyond  the  cases  just  indicated  in  giving 
relief  for  injuries  resulting  from  deception,  the  Equity  courts 
have  been,  and  are,  more  liberal. 

These  courts  originated  much  later  than  those  of  the  Common 


SPECIAL    KINDS   OP    CONDUCT.  249 

Law  and  consequently  established  their  doctrines  and  maxims 
at  a  time  when  the  common  conscience  was  better  developed.  In 
addition  to  this,  the  purpose  of  their  creation  was  to  grant  relief 
in  cases  of  manifest  injustice  for  which  no  remedy  could  be  had 
in  the  courts  of  the  Common  Law. 

Among  the  earliest  and  most  important  classes  of  cases  over 
which  this  new  jurisdiction  was  extended  were  cases  involving 
fraud.  The  cases  under  this  head  first  brought  to  these  courts 
were  confessedly  those  in  which  the  Common  Law  afforded  no 
relief,  because  the  injured  party  could  not  show  that  the  de- 
ception resulting  in  his  hurt  had  been  knowingly  brought  about. 
To  deny  relief  under  such  circumstances  would  have  been  to 
confess  that  in  this  respect  Equity  was  no  broader  than  Law, 
and  thus  to  contradict  the  fundamental  idea  upon  which  the  whole 
system  of  Equity  Jurisprudence  is  based.  Very  logically,  there- 
fore, the  courts  of  Equity  declined  to  limit  relief  in  cases  of  de- 
ception within  the  narrow  boundaries  of  the  Common  Law  on  that 
subject,  and  entertained  jurisdiction  in  many  instances  in  which 
there  had  been  real,  although  not  intended  deception.  A  new 
phrase  was  used  to  indicate  this  new  doctrine,  and  for  many  years 
''Equitable  Misrepresentation"  has  been  as  thoroughly  recog- 
nized as  a  basis  for  relief  in  chancery  courts  as  "Deceit"  has  been 
at  Common  Law. 

Equitable  Misrepresentation. — This  phrase,  in  Equity,  includes 
all  cases  of  material  deception  resulting  in  injury  to  a  person 
not  chargeable  with  legal  or  equitable  wrong,  whether  the  party 
occasioning  such  deception  did  so  consciously  with  intent  to  de- 
ceive, or  unconsciously  with  innocent  intent. 

This  equitable  doctrine  requires  only  two  concurrent,  funda- 
mental facts;  first,  actual  deception  as  to  material  facts,  brought 
about  or  existing  under  such  circumstances  as  to  be  justly 
chargeable  to  the  conduct  of  one  person  and,  second,  hurt  to 
another  directly  resulting  therefrom.  To  entitle  to  equitable  re- 
lief it  does  not  insist  on  the  existence  of  evil  or  improper  motive 
on  the  part  of  the  deceiver;  but  is  satisfied  with  the  two  facts, 
deception  through  the  conduct  of  one  person  and  directly  result- 
ing hurt  to  another. 

The  number  of  cases  which  may  be  relieved  in  Equity  under 
this  doctrine  but  in  which  no  remedy  could  be  had  at  Common 


250  AMERICAN   ELEMENTARY  LAW. 

Law  is  very  large,  and  the  practical  results  upon  the  law  as  a 
system  of  jurisprudence  is  very  great. 

These  differences  between  deceit  and  equitable  misrepresenta- 
tion are  still  retained  in  United  States'  Courts  and  in  most,  if 
not  all,  of  the  States  which  recognize  the  old  English  distinction 
between  Law  and  Equity.  In  a  number  of  the  States  this  dis- 
tinction has  been  abolished  by  statute.  The  statutes  having  this 
effect  are  not  identical  and  the  consequent  results  in  the  different 
States  are  not  entirely  uniform.  In  some,  the  practical  changes 
have  not  been  great,  while  in  others  an  action  for  damages  can 
be  maintained  for  equitable  misrepresentation  as  fully,  to  all 
intents  and  purposes,  as  upon  Common  Law  deceit. 

Conduct  Fraudulent  per  se. — In  the  last  several  paragraphs 
we  have  considered  the  question  of  motive  as  entering  into  the 
fraudulent  character  of  conduct.  In  many  cases  this  is  very 
important  and  in  a  still  larger  number  the  fact  of  deception  of 
some  sort  is  essential  to  the  law 's  conception  of  fraud.  Notwith- 
standing this,  there  are  a  few  classes  of  cases  in  which  neither 
motive  nor  deception  are  of  any  consequence.  These  are  those 
states  of  fact  which  are  declared  by  law  to  be  fraudulent  in 
themselves. 

When  the  law  denounces  a  transaction  as  fraudulent  per  se  the 
motive  upon  which  the  parties  thereto  acted,  or  whether  anyone 
was.  deceived  thereby  becomes  entirely  immaterial.  The  law  has 
set  its  absolute  disapproval  upon  the  transaction  and  the  matter 
ends  with  that. 

The  classes  of  cases  which  are  declared  fraudulent  per  se  are 
small  and  embrace  only  such  transactions  as  give  large  oppor- 
tunity for  fraud  and  in  which  experience  has  taught  that  fraud 
very  generally  exists.  Hence  the  law,  taking  a  practical  view 
of  the  matter,  says  that  it  is  better  to  declare  such  conduct  fraudu- 
lent within  itself,  and  thus  prevent  opportunity  for  overreaching 
and  unfair  advantage,  than  it  is  to  leave  the  matter  open  and 
sustain  such  transactions  unless  some  complaining  party  shall  be 
able  to  prove  deception  and  consequent  hurt. 

One  of  the  most  common  illustrations  of  acts  deemed  fraudu- 
lent per  se  is  found  in  mortgages  of  stocks  of  goods  exposed  foi 
sale  at  retail  when  the  mortgagor  retains  possession  of  the  stock 
and  control  of  the  business.     Such  a  transaction  in  a  given  case 


SPECIAL   KINDS   OP   CONDUCT.  251 

might  be  perfectly  honest  and  of  advantage  to  all  parties,  but 
the  opportunity  afforded  to  dishonest  merchants  acting  in  col- 
lusion with  preferred  creditors  to  defraud  other  creditors  is  so 
great,  and  the  temptation  is  so  strong,  that  as  a  matter  of  public 
policy  the  law  declares  that  every  such  mortgage  shall  be  deemed 
fraudulent. 

Matter  as  to  which  Deception  must  Exist. — While  the  law  rec- 
ognizes deception  as  the  very  gist  of  fraud,  it  is  still  quite  par- 
ticular regarding  the  nature  of  the  matters  as  to  which  the  de- 
ception must  exist  and  limits  its  recognition  to  deception  as  to 
material  facts,  past  or  present. 

This  doctrine  eliminates  from  the  conception  of  fraud  mere 
matters  of  opinion  or  surmise.  As  to  these  the  conjecture  of  the 
one  party  is  legally  supposed  to  be  as  reliable  as  that  of  the  other, 
and  unless  a  misrepresentation  includes  a  fact,  the  party  is  not 
legally  justified  in  relying  upon  it. 

Thus,  if  a  party  desires  to  sell  a  horse  and  as  an  inducement 
to  the  purchase  states  that  the  animal  has  a  certain  pedigree  and 
could  easily  be  trained  to  trot  a  mile  in  two  and  a  half  minutes 
Here  the  statement  as  to  the  pedigree  of  the  horse  is  a  statement 
of  a  fact  and  if  false,  the  deception  as  to  this,  if  the  other  ele- 
ments of  fraud  concur,  is  fraudulent.  But  the  other  statement 
as  to  the  effect  of  training  and  the  speed  which  the  horse  might 
attain  as  the  result,  is  a  matter  of  opinion  as  to  which  the  law 
presumes  the  purchaser  is  as  well  qualified  to  judge  as  the  seller, 
and  fraud  can  not  be  predicated  upon  this  statement. 

It  is  also  required  that  the  fact  pertain  to  something  past  or 
present.  Statements  as  to  matters  to  take  place  in  the  future 
are  regarded  in  much  the  same  light  as  opinions,  at  least  they  are 
looked  upon  as  matters  which  no  one  in  the  ordinary  business 
affairs  of  life  is  supposed  to  guarantee  or  assure. 

When  the  statement  as  to  the  future  assumes  the  nature  of  a 
promise  the  law  looks  upon  it  as  an  expression  of  intention  and 
if  it  is  the  presont  intent  of  the  promisor  to  comply  with  his 
undertaking,  subsequent  failure  to  do  so,  does  not  relate  back 
to  the  date  of  the  promise  and  make  the  transaction  fraudulent. 
On  the  other  hand,  if  at  the  time  the  promise  is  made  the  promisor 
has  no  present  intention  to  comply  with  his  undertaking,  then, 
or  at  the  time  his  promise  matures,  the  law  regards  the  promise 


252  AMERICAN   ELEMENTARY  LAW. 

as  a  false  statement  as  to  a  present  mental  condition  and  recog- 
nizes it  as  a  fact,  and  if  the  other  elements  of  fraud  concur,  will 
deal  with  it  as  fraudulent. 

This  distinction  between  a  future  promise  honestly  made,  which 
is  not  deemed  fraudulent,  and  a  false  representation  as  to  a  pres- 
ent mental  attitude  which  is  deemed  fraudulent  is  quite  clear 
in  the  case  of  the  purchase  of  personal  property.  A  man  hon- 
estly intending  to  pay  his  account,  according  to  agreement,  buys 
goods  from  a  merchant  promising  to  pay  in  sixty  days.  Before 
the  expiration  of  the  sixty  days  some  adverse  conditions  arise 
and  the  purchaser,  though  anxious  to  pay,  is  financially  unable 
to  do  so.  In  this  case,  the  law  recognizes  the  honest  intention 
of  the  purchaser  at  the  time  he  bought  the  goods  and  holds  that 
the  title  to  the  goods  has  passed  absolutely  to  him,  and  is  un- 
affected by  his  subsequent  default  in  payment,  and  the  only 
remedy  of  the  merchant  is  to  sue  on  his  account  and  collect  the 
debt.  But  if  at  the  time  the  buyer  obtains  the  credit  he  is  acting 
dishonestly  and  has  no  intention  of  paying  for  the  goods,  and 
uses  his  promise  to  pay  in  the  future  to  hide  his  present  dishonest 
intent,  and  thus  acquire  possession  of  the  goods  of  the  merchant 
without  paying  him  therefor,  the  law  looks  upon  this  promise 
as  a  subterfuge  and  declares  the  false  statement  as  to  the  present 
state  of  mind  and  intention  of  the  buyer  to  be  fraudulent.  Upon 
proof  of  such  facts,  the  merchant  could  rescind  the  agreement  to 
sell  and  get  back  the  goods  which  had  been  fraudulently  pro- 
cured. 

While  the  law  does  not  ordinarily  regard  a  promise  to  do  in  the 
future  as  a  present  fact,  it  scrutinizes  very  closely  all  statements 
by  the  promisor  as  to  his  present  or  future  ability  to  perform, 
made  as  a  basis  for  future  performance.  Thus,  if  a  man  de- 
siring to  secure  credit,  as  an  inducement  to  the  extension  of  the 
credit,  should  represent  that  he  now  has  a  certain  amount  of  prop- 
erty or  a  certain  income,  these  latter  statements  relate  to  present 
conditions  and  if  false  are  regarded  as  fraudulent. 

Materiality. — Not  only  must  the  statement  be  as  to  a  fact  past 
or  present  but  the  fact  must  also  be  material.  The  law  is  in- 
tensely practical  and  does  not  justify  a  man  in  drawing  silly  or 
unreasonable  conclusions  and  suffering  himself  influenced  by 
matters  not  ordinarily  or  reasonably  calculated  to  have  such 
effect. 


SPECIAL   KINDS   OF   CONDUCT.  253 

A  material  fact  is  one  which,  taken  in  connection  with  the  other 
circumstances  of  the  case,  is  reasonably  calculated  to  influence 
the  conduct  of  the  party  to  whom  it  is  addressed,  and  so  to  induce, 
him  to  take  the  action  desired  by  the  one  making  the  statement. 
The  ordinary  test  as  to  whether  or  not  any  given  statement  is 
reasonably  calculated  to  influence  the  party  to  whom  it  is  ad- 
dressed is  the  effect,  that  under  the  circumstances  surrounding 
the  parties,  the  statement  would  have  upon  a  man  of  ordinary 
prudence  and  judgment.  If  in  any  particular  case  a  statement 
not  reasonably  calculated  to  influence  an  ordinary  man  is  relied 
upon  as  material  because  it  did  in  fact  influence  the  particular 
party  to  whom  it  was  made,  the  peculiar  circumstances  which 
caused  it  to  have  such  effect  must  be  shown  before  the  law  will 
recognize  the  statement  as  material.  These  peculiar  circum- 
stances may  consist  of  confidential  relations  between  the  parties, 
mental  feebleness,  or  any  other  fact  which  actually  causes  the 
statement  to  have  a  controlling  influence. 

Means  by  which  Deception  is  Accomplished. — Many  expressions 
to  be  found  in  the  decisions  of  the  courts  and  in  legal  treatises 
make  the  means  by  which  fraud  is  consummated  so  emphatic  as 
to  justify  the  conclusion  that  the  artifice  made  use  of  to  ac- 
complish the  deception  is  the  fraud.  Indeed  high  authority  can 
be  found  for  the  proposition  that  it  is  not  desirable  to  define 
fraud  for  the  reason  that  as  soon  as  its  methods  of  accomplish- 
ment are  enumerated  by  the  law,  and  the  whole  ground  of  fraud 
is  thus  covered,  evil  disposed  parties  will  find  other  methods 
by  which  to  accomplish  their  purposes,  and  these,  not  being 
within  the  enumeration,  the  transaction  could  not  be  regarded  as 
fraudulent. 

Notwithstanding  these  authorities  the  true  conception  of  fraud 
distinguishes  between  the  deception  and  the  means  or  artifice  by 
which  the  deception  is  brought  about  and  regards  the  deception 
as  the  basic  idea  in  fraud.  In  thus  dealing  with  fraud  in  its 
essence  no  danger  can  arise  from  a  definition,  if  any  one  can  be 
found  capable  of  formulating  one. 

The  means  by  which  deception  is  accomplished  or  availed  of 
in  such  way  as  to  make  any  particular  person .  responsible  there- 
for as  fraud  involves  two  general  questions.  First,  How  was  the 
deception  brought  about,  continued,  or  permitted  to  continue? 
Second,  "What  connection  did  the  parties,  sought  to  be  charged", 


254  AMERICAN  ELEMENTARY  LAW. 

have  with  such  means?  These  two  phases  of  the  subject  must  be 
kept  in  mind  or  confusion  will  result.  As  fraud  consists  in  de- 
ception resulting  in  injury,  there  can  be  no  fraud  as  to  any  par- 
ticular person  unless  he  is  actually  under  a  misapprehension  as 
to  a  material  fact  or  facts,  and  no  one  is  chargeable  with  fraud 
unless  he  has  in  some  way  responsible  connection  with  the  hurtful 
misapprehension.  This  guilty  connection  may  consist  in  causing 
the  deception  or  in  affirmatively  fostering  and  continuing  a  de- 
ception already  existing,  or  in  simple  failure  to  disclose  the 
truth.  The  first  and  second  of  these  come  under  the  head  of 
affirmative  conduct,  and  the  third,  under  the  head  of  negative 
conduct 

The  means  by  which  deception  is  caused  or  brought  about  is 
called  misrepresentation ;  the  means  by  which  deception  is  affirma- 
tively continued  is  called  concealment;  and  the  means  by  which 
deception  is  simply  permitted  to  continue  is  called  non-disclosure. 

Misrepresentation. — This  includes  any  and  all  conduct  by 
which  an  untrue  idea  is  conveyed  to  the  mind  and  a  false  im- 
pression made  thereon.  It  usually  consists  in  words,  oral  or 
written,  but  this  is  by  no  means  necessary.  The  method  of  creat- 
ing the  false  impression  is  immaterial.  If  the  false  thought  and 
belief  are  created  in  the  mind  of  the  party  sought  to  be  influenced 
thereby,  the  means  by  which  this  is  accomplished  is  legally  of 
little  significance.  Different  methods  employed  may  necessitate 
different  means  of  proving  the  facts  and  in  this  way  may  make 
the  actual  establishment  of  fraud  more  or  less  difficult,  but  the 
legal  effect,  no  matter  by  what  means  the  facts  may  be  proved,  is 
the  same.  False  impressions  created  in  the  mind  by  affirmative 
conduct  always  come  under  the  general  head  of  misrepresentation. 

Concealment. — Concealment  differs  from  misrepresentation  in 
this:  it  never  creates  a  false  impression,  but  the  wrongdoer  find- 
ing the  mind  of  him  with  whom  he  is  dealing  already  under  the 
influence  of  a  false  idea  does  something  which  is  reasonably  cal- 
culated to  prevent,  deter  or  hinder  the  deceived  party  from  ascer- 
taining the  truth.  Concealment  goes  beyond  simple  failure  to 
relieve  the  mind  of  the  deceived  party  of  the  false  impression 
and  in  some  way  comes  between  him  and  the  ascertainment  of  the 
truth.  To  all  intents  and  purposes  it  is  legally  and  morally  as 
reprehensible    as    misrepresentation.     Concealment    always    in- 


SPECIAL   KINDS   OP   CONDUCT.  255 

volves  affirmative  conduct  in  some  way  and  to  some  extent.  Such 
conduct  may  be  very  slight  and  very  limited  but  unless  the  wrong- 
doer in  some  way  prevents  or  deters  the  deceived  person  in  the 
ascertainment  of  the  truth,  properly  speaking,  he  is  not  guilty 
of  concealment. 

Non-disclosure. — Non-disclosure  on  the  other  hand,  is  always 
purely  negative,  consisting  in  a  failure  to  give  information  or 
relieve  the  mind  of  the  deceived  party  of  false  impressions  al- 
ready existing.  As  we  have  already  seen,  failure  to  act  does  not 
come  within  the  law's  cognizance  and  jurisdiction  unless  the 
party  so  failing  is  under  legal  duty  to  do  that  which  he  has  failed 
to  do.  Applying  this  general  principle  to  the  matter  in  hand 
neither  law  nor  equity,  as  a  general  rule,  holds  a  person  respon- 
sible for  failure  to  relieve  the  mind  of  another  party  of  false 
impressions,  unless  the  facts  and  circumstances  in  the  case  show 
it  to  have  been  a  legal  duty  on  his  part  to  give  information  con- 
cerning the  matter  as  to  which  the  deception  exists. 

This  duty  of  disclosure  may  arise  from  several  states  of  fact. 

(1)  The  duty  arises  and  is  enforced  whenever  there  are  con- 
fidential relations  existing  between  the  parties.  For  example, 
such  as  principal  and  agent,  parent  and  child,  trustee  and  benefi- 
ciary, attorney  and  client,  etc.  In  each  of  these  and  similar 
relations  the  law  enjoins  upon  the  person  trusted  to  make  full 
and  fair  disclosures  of  all  facts  pertaining  to  or  involved  in  the 
trust,  and  the  failure  to  do  so,  if  resulting  in  hurt  to  the  party 
who  is  uninformed,  leads  to  legal  liability. 

(2)  While  the  ordinary  rule  of  the  Common  Law  in  the  sales 
of  personal  property  is  caveat  emptor,  which  requires  the  pur- 
chaser to  be  on  his  guard  and  diligently  exercise  his  own  powers 
for  his  own  protection,  this  rule  is  not  extended  to  cases  of  latent 
defects  not  open  to  ordinary  observation  or  discoverable  by  the 
use  of  ordinary  care.  In  case  of  such  latent  defect  it  is  the  duty 
of  the  seller  to  disclose  the  same  to  the  purchaser  and  failure  to 
do  so  is  regarded  as  fraud. 

(3)  In  its  tenderness  for  human  health  and  life  the  law  re- 
quires that  those  who  sell  food,  or  material  from  which  it  is  known 
the  purchaser  intends  to  make  food,  shall  disclose  any  and  all 
defects  therein,  especially  those  which,  in  any  manner,  tend  to 
make  the  food  physically  injurious. 


2f)(5  AMERICAN   ELEMENTARY   LAW. 

(4)  In  later  years  there  is  a  strong  tendency  to  extend  the 
doctrine  announced  in  the  last  paragraph  to  sales  of  feed  stuffs 
for  animals. 

(5)  The  same  or  a  closely  related  principle  is  quite  generally 
applied  in  the  sale  of  diseased  living  animals,  making  it  the  duty 
of  the  seller,  if  aware  of  the  fact,  to  inform  the  buyer  of  the 
diseased  condition  of  the  animal  or  animals  offered  for  sale. 
This  rule  is  more  rigidly  enforced  when  the  disease  is  infectious 
or  contagious  and  hence  not  only  affects  the  value  of  the  animals 
then  subject  to  it  but  makes  them  a  direct  source  of  danger  to 
other  stock  with  which  they  may  be  brought  in  contact. 

(6)  In  addition  to  the  foregoing,  there  are  occasional  cases  of 
great  hardship  in  which  the  law  gives  relief.  These  are  cases  in 
which  the  means  of  information  as  to  material  facts  are  not 
equally  open  to  both  parties  and  in  which  the  party  having  the 
information  knows  that  the  other  is  ignorant  as  to  the  facts,  and 
consciously  and  intentionally  takes  advantage  of  such  ignorance 
in  procuring  an  agreement,  which  it  is  practically  certain  the 
ignorant  party  would  not  have  made  had  he  been  advised  of  the 
facts,  and  thus  obtains  an  unconscionable  advantage.  In  such 
cases  the  courts  scrutinize  the  facts  very  closely  and  require  that 
injustice  must  be  clearly  apparent  before  relief  will  be  granted. 

Results  of  Deception. — To  be  actionable  as  fraud  the  deception 
must  always  result  in  pecuniary  injury  to  the  deceived  party. 
If  a  person  induced  by  false  suggestion  makes  a  contract  which 
results  in  his  pecuniary  gain  he  cannot  maintain  an  action  on 
purely  sentimental  or  ethical  grounds.  Thus,  if  a  person,  in 
order  to  sell  a  tract  of  land,  should  falsely  represent  that  it  was 
arable  and  productive  and  so  should  induce  another  to  purchase 
it,  if  in  fact  the  land  though  barren  and  unfit  for  cultivation  had 
in  it  minerals,  making  it  more  valuable  than  farming  lands,  the 
purchaser  could  not  maintain  an  action  by  reason  of  the  false 
statements  as  to  the  productiveness  of  the  land.  The  law  looks 
largely  to  pecuniary  results,  and  to  a  large  extent  awards  its 
remedies  in  the  form  of  money  compensation  for  financial  loss. 
Applying  this  rule  to  the  example  stated  the  purchaser's  case 
must  fail.  Though  he  did  not  get  just  the  thing  that  he  desired 
he  obtained  that  which  was  worth  more  on  the  market,  and  in  legal 
theory  his  remedy  is  in  his  own  hands,  viz.,  to  sell  the  valuable 


SPECIAL   KINDS   OF   CONDUCT.  257 

thing  which  he  has  and  buy  the  thing  which  he  had  formerly 
desired.  So  long  as  this  remedy  is  within  his  own  control  the 
law  does  not  undertake  to  give  him  redress  through  governmental 
agencies. 

Parties  Affected  by  Fraud. — In  most  fraudulent  transactions 
the  deception  is  produced  or  exists  in  the  mind  of  one  of  the 
parties  to  an  agreement.  These  cases  fall  under  one  or  the  other 
of  the  heads,  fraud  in  inducement  or  fraud  in  esse  contractus. 
These  are  discussed  later. 

There  are,  however,  a  good  many  fraudulent  transactions  to 
which  the  person  injured  is  not  a  party,  but  is  a  third  person 
whose  rights  are  prejudiced  by  the  fraudulent  conduct  of  others. 
This  prejudice  results  from  some  false  stcte  of  facts  or  conditions 
brought  about  by  the  defrauding  parties.  These  cases  therefore 
come  strictly  within  our  original  conception  of  fraud,  viz.,  de- 
ception resulting  in  unfair  disadvantage  to  the  party  deceived. 

Classifications  of  Fraud. — Having  thus  considered  the  general 
features  of  fraud  it  may  be  well  to  give  some  of  its  ordinary 
classifications. 

When  classified  as  to  motive,  fraud  is  known  as  actual,  con- 
structive and  fraud  per  se. 

Actual  fraud  includes  all  cases  of  intended  known  deception 
resulting  in  undue  advantage. 

Constructive  fraud  includes  those  cases  in  which  there  was 
actual  deception  but  no  intent  at  the  time  to  deceive. 

Fraud  per  se  includes  those  transactions  which  the  law  declares 
to  be  fraudulent  without  reference  to  the  motive  actuating  the 
parties. 

"When  classified  with  reference  to  the  rules  of  Common  Law 
and  of  Equity,  fraudulent  transactions  are  divided  into  deceit 
and  equitable  misrepresentation.  This  division  is  almost  the 
same  as  that  into  actual  and  constructive  fraud. 

Deceit,  which  is  actionable  at  Common  Law,  includes  only 
cases  of  intentional  deception.  These  embrace  therein  first,  those 
instances  in  which  the  statement  was  known  to  be  false,  second, 
those  in  which  the  falsity  of  the  statement  was  not  absolutely 
known  to'  the  party  making  it  but  in  which  he  believed  it  to  be 
false,  and  third,  those  cases  in  which  the  party  making  the  state- 
17 


258  AMERICAN   ELEMENTARY   LAW. 

inent  believed  it  to  be  true  but  had  not  investigated  to  ascertain 
its  truth  or  falsity  yet  stated  it  to  be  true  as  of  his  own  knowledge. 

Equitable  misrepresentation  includes  those  cases  in  which  the 
statement  was  not  known  to  be  false  and  was  made  innocently, 
though  in  fact  it  was  false.  These  oases  are  spoken  of  as  equit- 
able misrepresentation  to  indicate  that  courts  of  equity  will  afford 
relief  in  such  cases  although  courts  of  law  will  not.  If  a  case  is 
one  of  deceit  and  adequate  redress  can  be  had  at  law,  courts  of 
equity  will  not  take  jurisdiction  over  it.  If,  however,  there  are 
facts  and  circumstances  in  connection  with  the  case  of  such  nature 
that  relief  at  law  would  not  be  adequate,  or  if  there  are  addi- 
tional facts  or  circumstances  which  give  jurisdiction  of  the  case 
to  courts  of  equity  on  other  grounds,  equity  will  take  cognizance 
of  and  give  appropriate  relief  for  deceit. 

The  remedy  for  deceit  at  Common  Law  is  by  judgment  for 
damage.  The  remedy  in  courts  of  equity  for  misrepresentation 
or  deceit,  when  it  takes  jurisdiction  of  the  latter,  may  be  rescis- 
sion of  the  agreement,  or  damages,  or  both,  according  to  the  facts 
of  the  case. 

"When  classified  as  to  the  parties  to  be  affected  frauds  are 
divided  into  those  perpetrated  upon  one  or  more  of  the  parties 
to  the  agreement  and  those  in  which  some  or  all  the  parties  to 
the  agreement  conspire  to  defraud  a  third  person  or  persons. 

Frauds,  as  between  parties  to  the  agreement,  are  subdivided 
into  fraud  in  inducement  and  fraud  in  esse  contractus. 

Fraud  in  inducement  may  be  defined  as  deception  of  one  party 
to  an  agreement,  unlawfully  caused  or  availed  of  by  the  other 
party  to  the  agreement,  with  regard  to  some  material  fact,  by 
means  of  which  deception,  the  deceived  party  is  induced  to  give 
apparent,  though  unreal,  assent  to  the  agreement  resulting  in 
injury  to  the  deceived. 

This  definition  puts  the  stress  or  emphasis  upon  the  deception 
of  the  injured  party.  He  must  be  under  a  false  impression. 
No  one  who  knows  the  truth  concerning  a  matter  can  claim  to 
have  been  defrauded  by  acting  on  a  statement  regarding  this 
matter  which  he  did  not  believe  to  be  true. 

This  deception  must  have  been  unlawfully  occasioned  or  availed 
of  by  the  other  party  to  the  agreement.     It  is  absolutely  essen- 


SPECIAL   KINDS  OP   CONDUCT.  259 

tial  that  the  party  charged  with  fraud  be  in  some  way  identified 
with  the  deception  constituting  the  fraud.  This  identification 
or  privity  may  be  by  affirmative  conduct  creating  a  false  impres- 
sion or  by  taking  advantage  of  a  false  impression  already  exist- 
ing in  the  mind  of  the  other  party  and  in  some  way  preventing 
or  hindering  him  from  ascertaining  the  truth.  These  two  phases 
are  covered  by  misrepresentation  and  concealment.  The  iden- 
tification may  be  by  taking  advantage  of  a  known  deception  and 
failing  to  disclose  the  truth.  A  party  is  never  legally  responsible 
for  failing  to  disclose  the  truth  unless  his  relations  to  the  other 
party  or  the  nature  of  the  particular  agreement  is  such  as  to 
make  it  his  legal  duty  to  disclose  the  facts.  This  availing  of 
deception  without  occasioning  it  and  without  doing  anything 
to  prevent  the  deceived  party  from  ascertaining  the  truth  is 
known  as  non-disclosure. 

The  deception  must  be  as  to  a  fact,  past  or  present,  not  opin- 
ion or  future  promises,  though  a  promise  which  involves  a  false 
impression  as  to  a  present  mental  condition  is  regarded  as  a  false 
statement  as  to  a  present  fact. 

The  deception  must  actually  influence  the  party  deceived,  so 
that  by  reason  thereof  he  gives  his  consent  to  the  agreement 
sought  by  the  other  party.  This  influence  must  be  so  great  that 
but  for  the  deception  the  assent  would  not  have  been  given. 
The  assent  resting  upon  this  false  and  fictitious  basis  cannot 
justly  be  regarded,  morally  or  legally,  as  equivalent  to  assent 
based  upon  truth.  The  assent  based  upon  deception  is  properly 
held  to  be  apparent  only  and  unreal.  If  assent  were  given  with 
full  knowledge  of  the  facts  neither  party  would  have  cause  to 
complain.  If  assent  were  given  on  a  false  basis  when  the  party 
getting  the  advantage  was  in  no  way  responsible  for  the  decep- 
tion it  would  be  unjust  to  him  to  hold  him  legally  liable  therefor. 
The  law  would  regard  the  injury  of  the  deceived  party  as  the 
result  of  his  own  fault  in  failing  to  advise  himself,  and  not  as 
the  result  of  the  conduct  of  the  other  party  who  had  been  guilty 
of  no  legal  wrong. 

The  action  induced  by,  and  based  upon,  the  deception  must 
result  in  injury  to  the  person  deceived,  otherwise  he  has  no  legal 
ground  of  complaint. 


260  AMERICAN   ELEMENTARY   LAW. 

These  are  the  essential  elements  of  fraud  in  inducement.  If 
all  of  them  concur  the  law  takes  cognizance  of  the  case  as  one  of 
deceit  or  equitable  misrepresentation  according  to  the  facts  of  the 
particular  case. 

Fraud  in  esse  contractus  consists  of  deception  which  results 
in  obtaining  false  evidence  of  assent  to  a  hurtful  agreement  to 
which  no  assent  in  fact  was  ever  given. 

The  possibilities  for  fraud  of  this  kind  arise  from  the  fact  that 
some  contracts  are  required  to  be  evidenced  by  writing  and  that 
all  contracts,  if  so  desired  by  the  parties,  may  be  evidenced  in 
this  way.  It  is  a  general  rule  of  law,  when  parties  have  reduced 
their  agreements  to  writing  and  executed  them  as  required  by 
law,  that  the  written  instrument  merges  into  itself  all  previous 
and  contemporaneous  agreements  by  the  parties  covered  thereby, 
and  is  the  best  legal  evidence  as  to  the  final  understanding  and 
promises  of  the  parties.  This  is  a  salutary  rule,  in  the  great 
majority  of  cases,  but  it  is  not  impossible  that  in  some  instances 
through  carelessness  or  mistake,  or  willful  wrong,  the  written 
paper  should  be  really  incorrect  and,  instead  of  embodying  the 
real  agreement,  may  mean  something  else.  This  possibility  of 
difference  between  assent  and  the  evidence  of  assent  gives 
another  opportunity  for  deception  and  unfair  advantage.  For 
illustration :  One  person  sells  another  a  piece  of  property  for  one 
thousand  dollars,  to  be  paid  in  six  months,  and  the  purchaser 
agrees  to  give  his  note  for  this  amount,  payable  at  that  date. 
The  transaction  so  far  is  perfectly  fair,  no  deception  has  been 
practiced ;  the  seller  undertakes  to  prepare  the  papers  to  con- 
summate the  deal.  In  doing  so,  he  prepares  two  notes  for  signa- 
ture, one  for  one  thousand  dollars,  payable  in  six  months,  just  as 
agreed  upon ;  the  other  for  two  thousand  dolars.  He  submits 
the  first  to  the  buyer,  who  inspects  it,  and,  finding  it  all  right, 
undertakes  to  sign  it.  His  attention  is  called  off  and  the  seller, 
without  the  buyer's  knowledge,  substitutes  the  two  thousand  dol- 
lar note  for  the  one  the  buyer  has  just  read.  The  latter,  with- 
out negligence  on  his  part,  signs  the  note  for  two  thousand  dol- 
lars and  delivers  it  to  the  seller,  believing  it  to  be  the  note  for 
one  thousand  dollars.  This  is  a  case  of  fraud,  not  in  procuring 
the  original  agreement  to  pay  one  thousand  dollars,  but  in  pro- 
curing the  false  evidence  of  that  contract  which  shows  the  note 


SPECIAL   KINDS   OF   CONDUCT.  261 

to  be  for  two  thousand  dollars.  Here  the  buyer's  mind  does 
not  receive  or  act  at  all  on  a  proposition  to  pay  two  thousand 
dollars  for  the  thing;  but,  without  any  consciousness  upon  his 
part  that  he  is  doing  so,  he  is  deceived  into  signing  a  written 
instrument  of  whose  terms  he  is  ignorant,  and  evidencing  an 
agreement  to  which  he  has  not  given  even  an  unreal  assent. 

The  distinction  between  this  and  deception  practiced  to  pro- 
cure the  assent  of  the  mind  to  the  terms  of  the  agreement,  by 
misrepresentation  as  to  material  facts  inducing  the  agreement,  is 
readily  perceptible.  It  is  too  plain  and  practical  for  the  law  to 
ignore  it,  and  its  recognition  results  in  the  separation  of  frauds 
between  parties  to  contracts  into  frauds  in  inducement  and  frauds 
in  esse  contractus. 

Results  Following. 

When  conduct  is  fraudulent  in  the  sense  above  set  out,  it  is 
manifest  that  it  has  large  influence  in  determining  legal  rights. 
If  it  constitute  fraud  as  defined  at  Common  Law,  it  gives  to  the 
injured  party  a  right  to  compensation  from  the  fraudulent  party 
for  all  damages  sustained  directly  therefrom  and  also  gives  a 
right  to  have  the  contract  canceled  in  a  court  of  Equity.  If  it 
does  not  meet  the  Common  Law  requirements  as  to  known  falsity, 
but  comes  within  the  equitable  doctrine  of  misrepresentation, 
it  entitles  the  injured  party  to  cancel  the  contract,  and  compel 
restitution  of  what  he  has  given  under  it.  In  several  States  it 
has  either  or  both  of  these  consequences,  as  the  justice  of  the  case 
may  require.  The  fraudulent  party  can  never  take  advantage 
of  his  own  wrong  to  obtain  relief  from  the  consequences  of  the 
contract. 

These  results  are  usually  stated  by  saying  that  a  contract  pro- 
cured by  fraud  is  voidable  at  the  instance  of  the  defrauded  party, 
and  that  he  can  recover  all  damages  sustained  by  him  as  a  direct 
result  of  the  fraud,  but  that  the  contract  procured  by  fraud  is 
binding  on  the  fraudulent  party. 

Fraud  in  esse  contractus  is  absolutely  fatal  to  the  validity  of 
the  instrument  procured  thereby.  It  can  not  be  enforced  by  the 
original  fraudulent  party,  or  any  one  claiming  under  him,  even 
though  the  instrument  be  negotiable  in  form  and  be  in  the  hands 
of  an  innocent  purchaser  for  value  and  without  notice. 


262  AMERICAN   ELEMENTARY   LAW. 

Frauds  Upon  Persons  Not  Parties  to  the  Transaction. 

These  frauds  are  committed  usually,  if  not  always,  by  means 
of  conveyances  or  other  disposition  of  property  upon  which  a 
third  party  has  some  claim  or  demand.  Sometimes  the  claim  on 
the  thing  may  be  some  title  or  estate  in  it,  sometimes  it  is  a  spe- 
cific charge  or  lien,  and  sometimes  it  is  a  general  right  to  collect 
debts  by  its  sale  under  judicial  process.  The  fraudulent  pur- 
pose, actual  or  imputed,  is  so  to  deal  with  the  property  as  to  de- 
stroy or  defeat  the  title  or  claim  of  the  third  party.  Fraud  of 
this  kind  is  also  both  actual  and  constructive.  It  is  actual,  in 
those  cases  and  as  to  those  persons,  who,  conscious  of  the  right 
of  the  third  party,  perform  the  act  detrimental  to  him  with  the 
intent  and  purpose  to  delay  or  defeat  such  right.  It  is  construc- 
tive, in  those  cases  and  as  to  those  persons  who  do  not  know  of 
such  unlawful  purpose,  yet  who  are  so  connected  with  the  un- 
lawful act  as  to  receive  unfair  and  unconscionable  advantage 
by  reason  thereof;  and  also  in  those  cases  which,  from  long  ex- 
perience, the  law  denounces  as  fraudulent,  without  reference  to 
the  motives  of  the  parties,  because  they  are  so  often  accompanied 
by  actually  fraudulent  purpose,  or  give  such  great  opportunities 
for  fraud.  An  example  of  actual  fraud  is  found  in  the  con- 
veyance by  an  insolvent  debtor  of  property  subject  to  execution, 
made  with  the  purpose  to  hinder,  delay,  or  defeat  the  rights 
of  his  creditors.  An  example  of  the  first  kind  of  constructive 
fraud  is  found  in  the  gift  of  property,  subject  to  execution,  by 
a  person  who  believes  he  has  enough  left  to  pay  his  debts,  but 
who,  in  fact,  has  not ;  and  constructive  fraud  of  the  second  kind 
is  found  in  the  mortgage  of  a  stock  of  goods  exposed  to  sale  at 
retail  and  leaving  the  mortgagor  in  possession  and  control. 

Fraud  of  the  kind  now  under  consideration  affects  legal  rights 
differently,  according  to  the  circumstances  of  the  case  and  the  at- 
titude of  the  parties  toward  the  transaction.  The  rules  may  be 
stated,  very  generally,  as  follows : 

(1)  In  cases  of  actual  fraud,  where  the  fraudulent  purpose 
is  known  to  both  parties  and  shared  in  by  them,  the  law  will  not 
undertake  to  enforce  any  executory  terms  of  the  fraudulent 
agreement,  nor  to  restore  either  party  to  his  original  position. 
It  simply  applies  the  doctrine  that  from  a  known  unlawful  and 
immoral  act  no  cause  of  action  can  arise  to  either  party  to  the 


SPECIAL.   KINDS  OP  CONDUCT.  263 

transaction  knowingly  participating  in  the  wrongful  action ;  the 
vested  rights  of  either  are  not  in  any  way  to  be  disturbed  thereby. 
As  to  third  parties  having  no  vested  rights  at  the  time  and  not 
subsequently  misled  thereby  to  their  injury,  the  transaction,  and 
all  of  its  consequences,  are  sustained.  As  to  third  parties  there- 
after acquiring  interests  for  value  without  notice,  and  in  good 
faith,  the  transaction  will  hold,  so  far  as  is  necessary  to  protect 
such  bona  fide  rights. 

(2)  In  cases  of  actual  fraud  by  one  party,  unknown  and  un- 
participated  in  by  the  other,  the  transaction  will  not,  in  any  way, 
protect  the  one  having  the  fraudulent  purpose.  It  will  protect 
the  innocent  person,  so  far  as  equity  may  require;  that  is,  if  a 
party  has  paid  value  for  property  conveyed  to  him  with  intent 
to  defraud  the  creditors  of  the  seller,  of  which  the  purchaser  had 
no  notice,  the  creditors  could  not  reach  the  property  in  his  hands. 
However,  if  he  had  not  paid  value,  but  had  taken  the  property 
as  a  gift,  the  creditors. could  still  proceed  against  the  property. 
He  would  be  in  no  worse  condition  after  than  before. 

(3)  Acts  declared  to  be  fraudulent  by  the  law.  In  these  cases 
the  intent  of  the  parties  to  the  particular  transaction  is  of  no 
consequence.  For  reasons  of  public  policy,  the  law  denounces 
all  transactions  of  certain  kinds  as  fraudulent  and  they  can  not  be 
effective  to  the  injury  of  third  persons.  If,  however,  they  have 
been  executed,  they  will  hold,  as  between  the  parties. 


CHAPTER  XI 

SPECIAL    KINDS    OF    CONDUCT    WHICH    AFFECT    LEGAL    RIGHTS    AND 
DUTIES  (CONTD.) 

ESTOPPEL. 

Estoppel  is  cutting  off  or  precluding  a  person  from  denying 
the  truth  of  a  statement  previously  made  by  him.  It  is  applied 
to  two  classes  of  statements : 

(1)  Statements  made  in  some  solemn  form,  as  by  deed  or  some 
public  record ;  or 

(2)  Statements  which  have  deceived  some  one  and  by  so  doing 
have  caused  him  to  act  in  such  way  that  it  would  be  injurious 
to  him  to  allow  the  party  making  the  statement  to  deny  its  truth. 

The  fh'st  is  called  estoppel  by  deed  and  the  second  estoppel 
in  pais. 

Estoppel  by  Deed. — This  is  quite  an  ancient  doctrine  and  has 
long  been  in  high  favor  with  the  courts.  It  precludes  or  cuts  off 
a  person  from  denying  what  he  or  some  one  in  privity  with  him 
has  formerly  declared  to  be  true,  in  a  formally  executed  sealed 
instrument  or  which  he  has  solemnly  admitted  to  be  true  in  the 
course  of  judicial  proceedings.  The  doctrine  is  based  on  con- 
siderations of  public  policy  as  tending  to  secure  verity  in  public 
records  and  stability  of  rights  held  under  solemn  instruments. 

Estoppel  in  Pais. — This  doctrine  is  based  on  the  same  broad 
principle  of  justice  as  the  Law  against  fraud,  viz.,  that  one  person 
shall  not  be  permitted  to  mislead  another  to  the  latter 's  injury. 
In  fraud,  he  who  has  made  the  false  statement  inducing  another 
to  act  thereon,  when  the  deceived  party  finds  it  to  his  interest  to 
set  up  the  falsehood,  is  compelled  to  pay  to  the  injured  party  the 
damage  sustained  by  reason  of  the  falsehood  or  else  to  put  him 
back  in  the  position  he  occupied  before  he  was  deceived.  *  In  es- 
toppel, the  deceived  party  finding  it  to  his  interest  to  compel  the 
party  deceiving  him  to  settle  with  him  upon  the  basis  that  the 
false  statement  is  true,  invokes  the  false  statement  and  compels 


SPECIAL   KINDS   OP    CONDUCT.  265 

adjustment  upon  that  basis.  In  fraud  the  party  injured  by 
reason  of  the  deception  sets  up  the  deception  as  a  reason  for  not 
being  bound  by  the  agreement  induced  by  it.  In  estoppel  the 
party  who  has  acted  upon  the  false  statement  compels  the  one 
making  the  false  statement  to  make  that  statement  good  by  now 
acting  upon  it  as  true. 

In  the  law  of  estoppel  the  terms  misrepresentation,  conceal- 
ment, and  non-disclosure  have  the  same  meaning  as  in  the  law 
of  fraud.  That  is,  one  may  be  estopped  by  affirmatively  making 
a  false  statement  by  which  another  is  deceived,  or  he  may  be  es- 
topped by  preventing  one  who  is  already  deceived  from  obtaining 
correct  information,  or  he  may  be  estopped  by  failure  to  give 
information,  when  the  circumstances  are  such  as  to  make  it  his 
legal  duty  to  disclose  the  facts. 

The  following  conditions  must  exist  to  constitute  an  estoppel 
in  pais. 

(1)  There  must  be  a  misrepresentation  or  concealment  or  non- 
disclosure of  material  facts,  using  these  terms  in  the  sense  which 
they  have  in  the  law  of  fraud. 

(2)  The  matter  misrepresented  or  concealed  or  non-disclosed 
must  be  plain  and  certain,  and  ordinarily  must  relate  to  past  or 
present  facts,  not  to  mere  matter  of  opinion. 

(3)  The  party  sought  to  be  estopped  must  know  the  truth  re- 
garding the  matter  unless  he  is  so  related  to  the  facts  that  he  is  in 
law  chargeable  with  knowledge  of  them  or  it  is  his  legal  duty  to 
know  them. 

(4)  The  party  setting  up  the  estoppel  must  be  ignorant  of  the 
facts. 

(5)  The  party  sought  to  be  estopped  must  know  of  the  decep- 
tion of  the  other  and  design  that  he  should  be  influenced  and  in- 
duced to  act  thereby.  In  some  instances  recklessness  as  to  the 
rights  of  the  other  party  may  supply  the  place  of  intent. 

(6)  The  person  setting  up  the  estoppel  must  be  in  fact  de- 
ceived and  act  upon  the  deception  in  such  manner  as  to  do  him 
substantial  injury  unless  he  is  permitted  to  protect  himself  by 
estoppel. 

The  doctrine  of  estoppel  is  an  exceedingly  salutary  one  and  runs 
through  the  whole  body  of  the  Civil  Law. 


266  AMERICAN   ELEMENTARY   LAW. 

LICENSE. 

Definition. — License  is  a  privilege  or  permission  which  one  or 
more  persons  have  to  use,  enjoy,  or  in  some  way  profit  by  some 
thing  or  right  belonging  to  another. 

The  license  may  be  given  either  by  law  or  by  the  person  whose 
rights  or  property  are  affected  thereby. 

Licenses  oy  Law. — There  are  numerous  privileges  allowed  by 
law  to  persons  which,  without  such  legal  permission,  would  be 
violative  of  the  rights  of  those  whose  interests  are  affected  thereby. 
Some  of  these  privileges  are  express,  often  being  based  upon  ex- 
press legal  command. 

Very  frequently  the  command  of  the  law  to  do  a  certain  thing 
carries  with  it  by  necessary  implication  permission  or  license  to  do 
other  things  incidental  to  the  carrying  out  of  the  command.  As 
when  an  officer  has  a  writ  to  arrest  one  accused  of  crime  he  is 
thereby  licensed  to  enter  the  premises  of  the  party  sought  to  be 
arrested  or  of  other  persons  where  the  officer  has  reason  to  believe 
the  accused  may  be  found.  Or  if  an  officer  has  a  writ  commanding 
him  to  seize  certain  property  belonging  to  a  party,  he  is  hereby 
authorized  to  enter  the  premises  where  the  property  is  to  take  it. 

The  law  extends  many  licenses  in  the  ordinary  affairs  of  life 
because  they  are  conducive  to  the  public  welfare.  For  example, 
strictly  speaking  the  application  of  force  to  the  body  of  another 
is  unlawful.  To  justify  any  particular  application  of  force  the 
party  must  bring  himself  under  some  recognized  rule  of  law  au- 
thorizing him  to  use  the  force.  Perhaps  the  most  far  reaching 
and  frequent  exception  invoked  for  this  purpose  is  the  license 
given  by  law  to  the  casual  contacts  of  ordinary  life.  It  would 
be  both  foolish  and  impracticable  for  the  law  to  withhold  its 
license  from  such  contact. 

Licenses  given  by  law  ordinarily  cannot  be  revoked  by  him 
with  whose  rights  they  interfere,  but  they  may  in  almost  all  in- 
stances be  forfeited  by  the  wrongdoing  of  the  licensee.  For 
example,  an  officer  has  a  writ  commanding  him  to  seize  the  prop- 
erty of  a  debtor  and  sell  it  for  the  payment  of  his  debt.  The 
debtor  cannot  cancel  this  command  or  any  of  the  privileges  of 
the  officer  incidental  thereto,  but  if  the  officer  shall  seize  the 
property  under  the  writ  and  thereafter  shall  violate  the  command 


SPECIAL   KINDS   OP   CONDUCT.  267 

of  the  writ  in  dealing  with  the  property,  this  departure  from  the 
command  of  the  law  forfeits  the  officer's  right  under  the  writ, 
and  he  becomes  a  trespasser  as  to  all  he  has  done  thereunder  and 
is  responsible  to  the  owner  as  such. 

Licenses  Given  by  the  Person  Whose  Rights  Are  Affected. — We 
have  already  found  that  at  Common  Law  unperformed  promises 
not  having  all  the  essentials  of  contract  cannot  be  enforced,  and 
that  those  promises  which  do  have  the  elements  of  contract  may 
be  enforced.  Many  licenses  actually  existing  result  from  at- 
tempts to  enter  into  contract  in  which  the  agreement  lacks  one  or 
more  of  the  elements  of  contract.  The  elements  most  frequently 
wanting  are  consideration  and  form.  Occasionally  the  defect 
is  in  the  nature  of  the  thing  undertaken  or  the  purpose  to  be  ac- 
complished. 

Again,  numerous  licenses  arise  from  agreements  which  the  par- 
ties do  not  intend  shall  amount  to  contract,  but  shall  result  in 
revocable  privileges. 

Not  infrequently  licenses  arise  as  incidents  to  valid  agreements 
to  the  performance  of  which  they  are  necessary.  These  are 
called  licenses  coupled  with  an  interest.  They  are  so  closely  re- 
lated to  the  contracts  out  of  which  they  arise  that  they  may  well 
be  regarded  as  implied  terms  thereof. 

Such  a  large  number  of  licenses  resulting  from  agreement  are 
based  upon  agreements  lacking  consideration  that  it  is  customary 
to  speak  of  licenses  arising  from  the  acts  of  parties  as  distinguish- 
able from  contracts  by  the  absence  of  consideration.  In  this 
class  of  licenses  are  embraced  all  those  permissions  given  to  per- 
form acts  or  exercise  privileges  of  such  kind  that  oral  authority 
would  be  good  therefor,  but  which  are  without  consideration. 
Such  permission  or  license  cannot  amount  to  a  right  because  the 
agreement  out  of  which  it  grows  is  non-enforceable  at  law  and 
for  its  violation  there  can  be  no  legal  remedy.  Such  licenses 
are,  therefore,  necessarily  revocable  at  the  will  of  the  licensor. 
Such  revocation  ends  the  privilege  conferred  by  the  license  and 
the  licensee  can  no  longer  legally  exercise  it.  Notwithstanding 
this,  the  same  doctrine  that  recognizes  and  legalizes  voluntary 
agreement  as  bases  of  legal  rights  when  such  agreements  are 
performed  applies  here  and  as  a  result  the  license,  while  it  existed, 
was  a  complete  legal  justification  for  everything  done  by  the 


268  AMERICAN   ELEMENTARY   LAW. 

licensee  in  accordance  therewith  and  no  action  can  be  maintained 
for  such  action  after  the  license  is  revoked. 

There  are  certain  agreements  that  are  required  to  be  in  writing 
in  order  to  make  them  legally  enforceable.  If  an  agreement  of 
this  kind  is  entered  into  by  parol,  in  the  majority  of  cases,  it 
constitutes  merely  a  license,  not  a  contract.  For  example,  the 
law  requires  conveyances  of  estates  in  land  for  longer  than  a 
designated  term,  usually  one  year,  to  be  in  writing.  If  a  person 
were  to  orally  agree  to  sell  land,  the  purchaser  promising  to  pay 
consideration  therefor  and  should  suffer  the  purchaser  to  take 
possession,  these  facts  would  not  constitute  a  conveyance  of  the 
land,  but  a  mere  license  to  occupy  and  enjoy  it.  If  the  grantor 
refused  to  go  forward  with  the  sale  the  grantee  could  not  com- 
pel him  to  do  so.  If  the  grantor  demanded  possession  of  the  land 
the  grantee  could  not  successfully  resist  his  right  of  re-entry. 
To  regard  the  parol  agreement  as  a  conveyance,  or  even  as  an 
enforceable  agreement  to  convey,  would  be  in  direct  violation  of 
the  statute.  Notwithstanding  the  agreement  for  the  sale  of  the 
property  cannot  be  legally  enforced  and  is  subject  to  revocation 
at  any  time  by  the  grantor,  it  was  still  good  as  a  license  to  enter 
and  hold  possession  of  the  land  until  its  revocation,  and  as  such 
is  a  complete  defense  against  liability  of  the  grantee  as  a  tres- 
passer. If,  however,  the  grantee  should  continue  to  hold  posses- 
sion after  the  license  is  revoked,  his  possession  would  become 
unlawful  and  subject  him  to  all  the  liability  of  a  trespasser  from 
the  time  his  right  under  the  license  ceased. 

Agreements  which  are  unlawful  in  their  purpose  or  nature 
are  never  contracts.  The  law  is  not  fully  settled  as  to  whether 
or  not  such  agreements  can  ever  be  good  as  licenses.  The  weight 
of  authority  and  principle  concur  in  the  proposition  that  strictly 
speaking  they  cannot. 

Among  the  most  interesting  class  of  cases  of  this  sort  are  those 
which  relate  to  the  application  of  force  to  the  body.  It  seems  to 
be  universally  conceded  that  an  individual  may  lawfully  agree 
to  the  use  of  a  reasonable  amount  of  force  to  his  person  applied  in 
such  way  as  is  not  reasonably  calculated  to  do  him  appreciable 
harm.  This  rule  is  both  reasonable  and  useful.  Many  of  the 
necessary  activities  of  life  could  not  be  carried  on  without  it. 
The  right  to  engage  in  lawful  games  and  sports  comes  under  its 


SPECIAL   KINDS  OF    CONDUCT.  269 

sanction.  The  performance  of  surgical  operations  and  other  like 
proper  applications  of  force  for  the  benefit  of  him  to  whom  it 
is  applied  are  justified  by  it.  "With  these  classes  of  cases  we  have 
no  difficulty. 

When,  however,  it  is  sought  to  license  by  agreement  the  un- 
reasonable and  dangerous  application  of  force  to  the  body  of 
another,  or  application  of  even  slight  force  for  the  purpose  of 
violating  the  law,  different  rules  of  law  are  brought  into  play. 
It  seems  perfectly  clear  that  no  agreement  seeking  to  accomplish 
either  of  these  ends  could  be  valid  as  a  contract.  This  is  well 
established  by  the  authorities.  It  seems  on  principle  equally  clear 
that  no  such  agreement  is  good  as  a  license.  The  law  ought  not 
to  countenance  agreements  made  in  violation  of  its  own  pro- 
visions or  permit  parties  to  justify  their  conduct  on  the  theory 
that  the  party  injured  was  himself  willing  that  the  hurt  should 
be  inflicted.  Laws  are  not  made  by  the  agreement  of  a  few 
individuals  nor  ought  such  individuals  to  be  privileged  by  agree- 
ment to  set  the  law  aside  and  thus  practically  repeal  it.  The 
weight  of  authority  agrees  with  this  course  of  reasoning. 

Just  here  a  curious  result  is  announced  by  many  of  the  courts. 
Two  persons  agree  to  fight  in  violation  of  the  criminal  law.  One 
injures  the  other.  The  injured  party  sues  for  damages.  The 
defendant  sets  up  the  agreement  as  a  license  to  prevent  recovery. 
The  court  holds  that  the  agreement  was  in  violation  of  law  and 
was  therefore  not  a  license  and  that  the  defense  set  up  is  not  good. 
This  is  perfectly  logical  and  legal  but  the  curious  fact  is  that  the 
court  having  declared  the  agreement  unlawful  and  hence  not  a 
sufficient  basis  for  license,  stops  its  investigation  as  to  the  effect 
of  the  illegality  of  the  agreement  upon  the  conduct  of  the  parties 
and  gives  to  one  of  the  conspirators  against  the  law  a  remedy 
against  the  other  for  damage  received  in  its  known  and  conscious 
violation.  It  seems  clear  that  the  true  legal  doctrine  is  that  the 
agreement  is  an  unlawful  conspiracy  from  the  carrying  out  of 
which  no  cause  of  action  could  arise  in  behalf  of  either  con- 
spirator. 

WAIVER. 

Waiver  is  an  express  or  implied  yielding  of  some  right  or 
privilege  to  another  without  consideration,  but  under  such  cir- 
cumstances as  to  cut  the  party  off  from  further  setting  up  the 


270  AMERICAN   ELEMENTARY   LAW. 

same  to  the  disadvantage  of  the  party  in  whose  favor  the  waiver 
was  made.  It  is  very  closely  connected  with  estoppel,  differing 
from  it  mainly  in  the  fact  that  it  usually  relates  to  something  to 
be  done,  or  forborne,  in  the  future.  To  make  a  waiver  binding, 
the  circumstances  must  be  such  as  to  make  it  clearly  uncon- 
scionable to  permit  the  party  to  again  assert  the  right  or  privilege, 
or  the  waiver  must  be  expressly  authorized  by  law. 

LACHES. 

This  is  a  failure  to  use  due  and  reasonable  diligence  in  the 
prosecution  of  a  right.  Before  it  can  be  effective  to  cut  off  rights, 
the  delay  must  be  so  long  as  to  cast  serious  suspicion  on  the 
original  justness  of  the  claim  or  raise  a  strong  presumption  of 
settlement  or  abandonment..  It  is  an  equitable  doctrine,  and  is 
frequently  denominated  Stale  Demand,  though  there  are  ap- 
preciable differences  between  them.  It  is  frequently  said  that, 
to  constitute  a  defense,  laches  must  have  continued  for  the  length 
of  time  which  would  constitute  a  bar  by  limitation,  in  a  court  of 
law,  on  a  similar  cause  of  action.  This  does  not  seem  altogether 
correct,  for  sometimes  it  is  true  that  delay  less  than  the  statutory 
period  will  be  fatal  to  the  equitable  proceeding,  if  such  delay  be 
accompanied  with  some  other  evidences  of  suspicion,  adjustment 
or  abandonment. 

CONDUCT  CONSTITUTING  A  BAR  UNDER  STATUTE  OP  LIMITATION. 

This  is  delay  to  enforce,  or  attempt  to  enforce,  a  right,  through 
the  courts,  for  the  length  of  time  which  the  law  says  shall  con- 
stitute a  complete  bar  to  the  successful  prosecution  of  a  suit  based 
on  such  right.  These  are  primarily  legal  defenses,  but  Equity 
will  follow  the  law  in  this  respect,  and  will  refuse  to  recognize 
and  enforce  any  right  which  would  be  barred  in  the  law  courts. 
The  terms  upon  which  limitation  can  be  based  are  always  fixed 
by  law,  either  Common  or  Written,  and  to  avail  himself  of  the 
bar  the  party  seeking  its  protection  must  be  able  to  establish  facts 
bringing  him  within  these  terms.  This  he  may  do  by  admission  of 
his  adversary  in  his  pleadings,  or  by  pleading  and  proof  in  his 
own  behalf.  The  usual  requirements,  when  property  is  involved, 
are  that  the  party  invoking  the  bar  has  had  continuous  adverse 


SPECIAL  KINDS  OF   CONDUCT.  271 

and  peaceable  possession  of  the  property  for  the  length  of  time 
mentioned  in  the  law.  If  special  additional  facts,  such  as  a  re- 
corded title  to  him,  payment  of  taxes,  etc.,  are  made  essential  by 
the  law,  he  must  both  plead  and  prove  them. 

At  Common  Law,  limitation  was  said  to  be  a  shield  of  defense, 
but  not  a  sword  of  offense;  that  is,  it  was  a  protection  against 
successful  suit  against  the  person  entitled  to  it,  but  it  never 
ripened  into  a  title  which  he  could  make  the  basis  of  an  action 
by  him,  if  he  should  be  dispossessed.  To  do  the  latter,  at  Common 
Law,  he  was  required  to  show  such  facts  as  would  raise  a  pre- 
sumption of  a  grant  to  him,  and  thus  show  what  was  called  a  title 
by  prescription.  Under  many  statutes,  these  prescriptions  are 
done  away  with,  and  one  who  holds  possession  of  the  property  for 
the  time,  and  under  the  conditions  required  by  statute,  becomes 
the  owner,  and  may  sell  the  property  or  maintain  any  action, 
either  legal  or  equitable,  for  it. 

Usually  there  are  exceptions  in  statutes  of  limitations  in  favor 
of  persons  non  sui  juris  from  any  continuing  cause.  These  vary, 
according  to  the  judgment  and  policy  of  the  legislature.  Married 
women  are  no  longer  included  among  the  exceptions,  under  the 
statutes  of  Texas. 

Statutes  of  limitation,  when  the  time  is  reasonable,  giving  fair 
opportunity  for  enforcement  of  the  right  before  its  loss,  are  salu- 
tary as  statutes  of  repose,  whose  tendency  is  to  quiet  titles  and 
prevent  stale  litigation. 

It  sometimes  occurs  that,  when  a  wrong  is  committed,  the  in- 
jured party  is  under  two  disabilities.  "When  this  is  the  case,  the 
statute  of  limitations  does  not  begin  to  run  till  the  removal  of 
the  one  continuing  longest;  as,  if  a  woman  be  an  infant  and  of 
unsound  mind  both  when  her  property  is  taken,  limitation  would 
not  begin  to  run  against  her  right  to  sue  until  after  the  cessation 
of  both  these  disabilities. 

In  some  instances,  when  the  cause  of  action  accrues  the  party  is 
under  one  disability  and,  before  the  removal  of  that,  another  will 
arise :  As  if  a  wrong  is  done  an  infant,  and  before  he  obtains  his 
majority  he  becomes  insane.  In  such  case,  the  disabilities  are 
not  to  be  added :  but.  when  the  one  existing  at  the  time  the  right 
to  sue  arose  is  removed,  limitation  begins  to  rns. 


272  AMERICAN   ELEMENTARY   LAW. 

NOTICE. 

Frequently  the  results  of  one 's  conduct  are  materially  affected 
by  his  information  or  lack  of  information  regarding  facts  con- 
nected with  the  transaction.  We  are  not  speaking  now  of  mental 
condition,  as  a  status,  nor  of  mistake  of  fact,  either  mutual  or 
unilateral,  by  parties  to  an  agreement,  as  affecting  its  validity 
between  them,  but  of  information  or  ignorance  by  a  normal  person 
of  facts  connected  with  or  involved  in  a  transaction,  as  this  mental 
attitude  affects  the  rights  of  third  persons. 

These  conditions  of  mind  may  be  classed  as  follows :  knowledge, 
notice,  and  ignorance.  They  are  usually  treated  under  two  heads, 
notice  and  absence  of  notice.  There  is  a  great  deal  of  confusion 
in  the  books  upon  the  subject.  It  is  much  simpler  to  use  the  three 
heads  given  above ;  and,  having  once  learned  to  think  clearly  in 
these  terms,  the  student  can  readily  test  what  he  sees  in  the  au- 
thorities by  them,  and  thus  clear  the  situation  very  greatly. 

Knowledge  is  actual  information  of  the  fact  under  considera- 
tion. Whenever  a  person  actually  knows  a  fact  he  has  knowledge 
of  it,  and  if  such  knowledge  affects  his  legal  rights  and  duties,  he 
can  not  ignore  the  information  and  avoid  its  consequences. 

Notice  is  implied  knowledge.  It  is  a  state  of  facts  in  which  the 
person  whose  rights  and  duties  are  being  considered  is  really 
ignorant  of  the  facts,  but  still  he  is  dealt  with  and  his  rights  and 
duties  determined  as  if  he  had  knowledge.  This  implication  may 
be  either  of  law  or  of  fact. 

Implications  in  Law. — Implications  in  law  exist  whenever  the 
law  says  that  under  certain  conditions  all  persons  shall  be  con- 
clusively presumed  to  know  certain  facts  or  when  it  says  that 
under  certain  conditions  certain  persons  shall  be  conclusively  pre- 
sumed to  know  certain  facts.  These  are  legal  implications  of 
knowledge.  The  first  is  illustrated  by  the  law  of  registration. 
For  purposes  of  public  policy  the  law  provides  a  system  by  which 
all  conveyances  of  land  may  be  placed  in  a  public  record,  to  which 
all  persons  have  access.  It  then  says  to  all  persons  dealing  with 
land:  "You  should  place  your  deeds  upon  this  record,"  and  to 
all  other  persons  that,  when  a  deed  is  actually  placed  upon  this 
record  according  to  law.  to  which  they  have  access,  they  must 
examine  these  records  before  dealing  with  the  land,  and  that  they 


SPECIAL   KINDS  OF   CONDUCT.  273 

shall  be  held  to  know  just  such  facts,  no  more  and  no  less,  as  they 
would  have  discovered  by  an  examination  of  them.  This  applies 
to  all  persons,  and  is  often  called  constructive  or  record  notice. 

The  second  is  illustrated  by  the  law's  dealing  with  recitals  in 
deeds  under  which  a  person  holds  property.  The  deed  may  have 
been  made  years  before  the  present  holder  had  any  concern  with 
the  property,  and  he  may  never  have  actually  seen  the  deed; 
but,  if  it  is  a  part  of  his  title,  he  is  conclusively  presumed  to  have 
knowledge  of  what  it  recites,  and  is  to  be  judged  accordingly. 
This  implication  is  not  general  against  everybody,  as  the  first  is, 
but  is  special  against  those  persons  only  who  hold  under  the  deed 
containing  the  recital.  This  is  sometimes  treated  as  estoppel 
by  deed. 

These  legal  implications  of  knowledge  are  conclusive,  and  their 
consequences  are  in  no  wise  affected  by  showing  that  the  person 
whose  rights  are  being  determined  was,  in  fact,  totally  ignorant 
on  the  subject. 

Implications  in  Fact. — These  are  based  upon  such  conditions 
or  facts  as  first  create  a  duty  to  inquire,  and  second  afford  reason- 
able opportunity  for  correct  information  as  to  the  true  state  of 
affairs.  This  is  frequently  called  putting  one  upon  inquiry. 
Thus,  if  one  person  has  the  legal  title  to  property  in  him,  but 
another  is  the  real  owner,  and  the  first  offers  to  sell  it  to  a  third 
person,  knowledge  by  the  third  person  of  the  superior  right  of 
the  second  would  subordinate  the  rights  he  would  acquire,  by  the 
purchase,  to  the  superior  equity  of  the  second ;  but  ignorance  of 
those  rights  would,  if  the  purchaser  acted  in  good  faith  and  paid 
value,  destroy  such  rights  as  against  the  purchaser,  and  he  would 
take  the  property  freed  from  the  claims  of  the  second  party ;  but 
if  the  purchaser  had  knowledge  of  such  facts,  as  would  be  reason- 
ably sufficient  to  raise  a  well-founded  belief  that  the  third  party 
did  have  rights  in  the  property,  the  law  requires  him  to  follow 
up  the  suggestion  thus  made  to  him,  and  use  reasonable  diligence 
to  ascertain  the  truth ;  and  if  he  does  not,  it  charges  him  with 
knowledge  of  all  facts  which  reasonable  injuiry  would  have 
developed.  If  he  does  use  reasonable  diligence  to  follow  up  the 
suggestion,  and  can  not  discover  the  facts,  he  has  done  his  duty 
and  is  not  charged  with  knowledge. 

It  must  be  observed  that  the  suggestion  of  right  in  the  third 
18 


274  AMERICAN   ELEMENTARY   LAW. 

person  arises  here  from  facts  coming  to  the  knowledge  of  the  per- 
son sought  to  be  charged  with  information.  These  suggestive 
facts  vary  with  each  case,  and  are  to  be  judged  by  the  testimony 
as  to  all  the  circumstances.  After  all  these  facts,  as  such,  are 
determined,  their  weight  or  effect  as  to  suggestion  of  right  in 
the  third  person  is  then  to  be  determined,  in  order  to  ascertain 
the  duty  of  inquiry  imposed  upon  him  thereby;  and  then  the 
nature  and  extent  of  the  inquiry  made,  and  its  sufficiency,  are  all 
to  be  considered.  All  these  are  matters  for  the  jury  to  decide. 
If  they  think  that  the  evidence  in  the  case  would  have  put  an 
ordinary  man  upon  inquiry,  and  that  the  particular  person  whose 
conduct  is  being  considered  made  no  sufficient  investigation,  he 
will  be  charged  with  knowledge.  If  either  of  these  is  answered 
in  the  negative  he  is  not  so  charged. 

DEATH. 

Death  terminates  all  temporal  interests  and  titles  of  the  de- 
ceased. He  is  no  longer  in  a  position  to  enjoy  or  assert  legal 
rights,  or  to  be  subject  to  legal  duties.  As  a  matter  of  public 
policy,  the  law  undertakes  to  regulate  the  property  rights  and 
obligations  formerly  pertaining  to  the  dead,  and  to  make  just 
provision  for  passing  them,  in  qualified  and  modified  form,  to 
others. 

So  long  as  a  person  lives  he  has  a  right  to  the  use,  enjoyment, 
and  disposition  of  all  his  property,  and  is  liable  for  the  payment 
of  all  his  debts.  These  debts  may  be  collected  from  him  by  suit 
and  judicial  sale  of  all  property  belonging  to  him  not  exempt 
from  execution.  The  aggregate  of  his  property  constitutes  his 
assets,  and  the  aggregate  of  his  debts  is  the  extent  of  his  liability. 
These  debts  are  not,  ordinarily,  charges  or  liens  upon  his  property, 
but  each  or  all  of  them  may  be,  or  become  so,  if  the  debtor  shall 
contract  in  due  form,  or  if  the  creditor  shall  take  the  necessary 
action,  through  the  courts,  to  make  them  so.  So  long  as  any 
particular  thing  owned  is  unencumbered,  or  uncharged  for  the 
payment  of  debts,  the  owner  may  dispose  of  it,  if  he  does  so  in 
good  faith.  If  it  be  encumbered,  or  subject  to  a  lien,  the  sale 
or  disposition  of  it  would  not  relieve  it  of  the  lien,  unless  the 
money  received  were  used  to  pay  off  the  debt,  or  the  purchaser 


SPECIAL   KINDS   OF   CONDUCT.  275 

were  one  in  good  faith,  for  value  and  without  notice  of  the  lien. 
So  long  as  the  person  lives,  his  power  of  disposition  over  his 
property  continues,  and,  under  the  law  as  to  Wills,  he  may  most 
frequently  make  a  disposition  of  it  to  become  effective  at  his  death. 
This  we  will  consider  later.  All  the  property  one  owns  at  his 
death  constitutes  his  estate,  and  all  the  debts  he  owes  at  his 
death  are  collectible  out  of  this  estate,  if  there  be  sufficient  to  pay 
them  after  satisfying  the  needs  of  the  Surviving  members  of  the 
family  of  which  the  deceased  constituted  the  head. 

To  a  limited  extent  the  family  is  recognized  in  law  as  having 
legal  existence.  Claims  of  kinship  are  also  recognized,  even 
though  the  relationship  be  not  such  as  to  make  the  persons  be- 
tween whom  it  exists  members  of  the  same  family,  legally  speak- 
ing. 

Taking  the  foregoing  into  consideration,  we  find  that  death 
has  the  following  effect  upon  legal  rights  and  duties : 

(1)  It  removes  the  deceased  from  the  jurisdiction  of  all  gov- 
ernmental agencies.  They  can  no  longer  regulate  his  conduct, 
nor  at  his  instance  enforce  any  rights  or  legal  liabilities. 

(2)  Death  terminates  all  rights  and  ends  all  duties  which  are 
strictly  personal  in  their  nature.  It  does  not  destroy  property 
rights,  nor  rights  against  others,  nor  duties  due  them,  which  are 
liquidated  and  vested.  At  Common  Law  it  destroyed  all  remedial 
rights,  and  their  correlative  duties,  which  were  based  upon  viola- 
tion of  personal  rights,  but  not  those  based  upon  violation  of 
property  rights.  Under  the  statutes,  in  many  States,  these  rules 
are  much  modified,  and  now  many  remedial  rights,  based  upon 
violations  of  designated  personal  rights,  survive.  These  statutes 
are  not  uniform,  and  an  attempt  at  classification  would  not  be 
profitable  here. 

(3)  Upon  the  death  of  a  person,  all  of  the  property  which  be- 
longed to  him,  taken  together,  constitutes  the  assets  of  his  estate, 
and  all  debts  due  by  him,  and  all  remedial  rights  existing  against 
him,  and  which  survive  his  death,  constitute  the  liabilities  of  his 
estate. 

(4)  All  persons  not  under  disability,  and  all  married  women, 
are  authorized  to  dispose  of  their  assets  by  will,  duly  executed, 
and  pass  their  titles  to  such  persons  as  they  may  designate,  and 
are  also  authorized  to  nominate  one  or  more  persons  to  take  charge 


276  AMERICAN   ELEMENTARY   LAW. 

of  the  assets,  and  manage  and  dispose  of  the  estate  as  the  will 
provides. 

(5)  If  the  property  of  the  deceased  is  not  disposed  of  by- 
legal  will  it  does  not  thereby  escheat,  but  passes  to  those  per- 
sons named  by  law  as  heirs,  to  be  taken  and  held  in  such  pro- 
portions as  the  law  directs.  In  determining  who  shall  be  heirs,  the 
law  gives  preference  to  the  members  of  the  immediate  family  of 
the  deceased,  and,  if  there  are  none  such,  then  to  more  remote 
kindred.  If  there  be  no  kindred  within  the  degrees  of  relation- 
ship designated  as  heirs,  the  property  escheats  to  the  State. 

(6)  The  rights  in  these  assets  taken  under  a  will,  or  by  inher- 
itence,  or  by  escheat,  are  subject  to  the  just  debts  and  liabilities 
of  the  deceased,  and  also  to  certain  statutory  rights  of  the  family, 
if  there  be  one,  and  the  devisee  or  heir  is  not  entitled  to  im- 
mediate use  and  enjoyment  of  the  property,  in  contravention  of 
these  rights  of  creditors  and  the  family,  if  one  exist. 

(7)  If  there  be  neither  creditors  nor  family,  the  devisees,  or 
heirs,  as  the  case  may  be,  are  entitled,  at  once,  to  the  beneficial 
enjoyment  of  their  respective  estates.  In  the  case  of  heirs,  this 
right  extends  to  the  distributive  share  in  the  whole  assets,  taking 
such  title  as  the  deceased  had.  In  the  case  of  will,  the  estate, 
being  devised  through  the  will,  is,  of  course,  measured  by  its 
provisions. 

(8)  It  results,  from  the  foregoing,  that,  if  there  be  no  debts 
or  claims  against  the  estate  and  no  will,  there  is  a  simple  and 
direct  passage  of  the  decedent's  title  and  assets  to  his  heirs,  and 
no  governmental  intervention  is  necessary. 

(9)  If  there  be  debts  and  liabilities,  there  is  no  one  charged 
particularly  with  paying  them,  and  as  the  estate,  except  such 
assets  as  are  exempt  by  law,  is  subject  to  these  debts,  it  follows 
that  the  interests  of  all  parties  require  the  appointment  of  some 
suitable  person  to  take  charge  of  the  assets,  manage  and  control 
them,  and  apply  so  much  of  them  as  may  be  necessary  to  their 
discharge.  This  is  accomplished  by  proceeding  in  a  court  having 
jurisdiction  over  such  matters,  frequently  called  a  probate  court. 
This  court  appoints  a  suitable  person  to  take  charge  of  and  man- 
age the  property,  under  the  supervision  and  control  of  the  court ; 
to  apply  its  assets  to  the  several  claims  against  the  estate,  in  the 


SPECIAL  KINDS  OP   CONDUCT.  277 

order  directed  by  law;  to  pay  over  and  deliver  the  balance  to  the 
devisees,  in  case  of  a  will,  and  to  the  heirs,  when  there  is  no  will. 

This  process  of  controlling,  applying,  and  distributing  the 
estate  is  called  an  Administration.  When  the  person  in  charge  is 
named  in  the  will,  he  is  called  an  executor ;  where  there  is  no  will, 
and  he  is  selected  and  appointed  by  the  court  he  is  called  an  ad- 
ministrator. 

If  there  are  no  debts  against  an  estate,  administration  may  still 
be  necessary,  if  there  be  a  will.  Every  will  is  an  instrument 
changing  the  course  of  legal  transmission  of  title ;  that  is,  in  the 
absence  of  a  will,  designated  classes  of  persons  inherit  the  estate ; 
and,  therefore,  if  a  will  be  made  making  a  different  disposition  of 
the  assets,  or  any  of  them,  the  title  of  the  devisees  under  the  will 
depends  upon  the  existence  and  terms  of  the  will,  and  not  upon 
the  general  rules  of  inheritance,  as  applied  to  the  particular  case. 
It  is,  therefore,  necessary  to  have  the  genuineness  and  effect  of  the 
will  judicially  ascertained  and  declared,  before  any  one  could  be 
fully  authorized  to  carry  it  out,  or  assert  rights  under  it.  And 
for  these  purposes  the  probate  courts  may  take  cognizance  of  es- 
tates and  the  rights  of  devisees  therein.  In  an  administration  of 
this  kind,  the  court  compels  the  recognition  and  adjustment  of  all 
proper  claims  against  the  deceased,  and  construes  the  will  and 
determines  the  powers  and  duties  of  the  executor  and  the  rights  of 
devisees  thereunder.  The  court  will  retain  jurisdiction  over  the 
estate,  so  long  as  it  may  be  necessary  to  protect  the  legal  rights  of 
all  persons,  and  then  require  the  delivery  of  the  property  to  those 
entitled  under  the  will,  or  under  the  general  law  when  the  will 
does  not  apply. 

(10)  In  the  administration  of  estates,  in  several  of  the  States 
of  the  Union,  the  family  of  the  deceased,  if  there  be  one,  is  recog- 
nized as  having  certain  rights  in  the  assets.  Sometimes  these  are 
superior  to  the  rights  of  creditors ;  sometimes  they  are  not. 


CHAPTER  XII. 

SOME  SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES. 

There  are  many  special  relations  which  may  exist  between  or 
among  individuals,  which  give  rise  to,  modify,  or  destroy  legal 
rights.  These  relations  are  of  various  kinds  and  it  would  be  im- 
practicable to  undertake  to  deal  with  each  class  separately.  The 
discussion  under  this  heading  will  be  confined  to  the  more  im- 
portant personal  relations  leaving  those  which  grow  out  of  or  are 
directly  connected  with  rights  in  particular  things  which  will  be 
considered  under  the  head  of  property,  and  those  which  involve 
matters  in  which  the  public  has  a  special  interest  which  will  be 
treated  under  the  head  of  Public  Utilities. 

The  three  most  important  classes  of  personal  relations  are : 

(1)  Domestic  Relations. 

(2)  Those  involving  Substitution. 

(3)  Those  involving  Co-operation  or  Community  of  Interest. 

DOMESTIC  RELATIONS. 

Under  this  head  we  will  treat  of  marriage  and  the  family,  hus- 
band and  wife,  parent  and  child,  and  guardian  and  ward. 

It  is  customary  to  place  master  and  servant  in  this  group.  For- 
merly, when  the  great  majority  of  servants  had  their  homes  and 
rendered  their  services  in  and  with  the  family  of  the  master,  this 
was  fairly  accurate.  Under  present  conditions  the  duties  and 
services  rendered  by  employees  in  connection  with  business  ac- 
tivities are  so  much  more  important  and  receive  so  much  more 
attention  from  the  law  than  those  which  are  truly  of  domestic 
nature  that  the  classification  has  become  confusing  if  not  mis- 
leading. Master  and  servant  will,  therefore,  be  considered  in  the 
second  group,  Relations  involving  Substitution. 

Marriage  and  the  Family. — The  proper  basis  for  all  domestic 
relations  is  the  marriage  agreement  and  the  resulting  social  and 
legal  institution  called  the  family.  This  institution  lies  at  the 
foundation  of  all  well  ordered  social  and  governmental  stability 
and  right  development.     Without  the  family  and  the  home  neither 


SPECIAL   RELATIONS   AFFECTING   LEGAL   RIGHTS.  279 

social  order  nor  political  liberty  is  possible.  The  family  is  the 
unit  of  all  civilization  and  from  it  all  larger  social  and  political 
organizations  develop. 

Marriage  presents  five  different  aspects: 

(1)  A  contract  between  the  parties. 

(2)  A  religious  institution. 

(3)  A  civil  institution. 

(4)  A  combined  religious  and  civil  institution. 

(5)  A  status. 

Each  of  these  views  is  true  from  its  own  standpoint 

The  law,  in  its  ordinary  treatment  of  the  subject,  regards  mar- 
riage as  a  status  established  by  contract  of  competent  parties, 
sanctioned  by  the  government,  and  which  can  not  be  destroyed 
by  act  of  the  parties  without  the  consent  of  the  State. 

Common  Law  Marriage. — An  agreement  in  pr&senti  between  a 
man  and  a  woman,  not  disqualified,  that  they  are  now  man  and 
wife,  accompanied  by  cohabitation,  is  sufficient  to  constitute  mar- 
riage at  Common  Law.  The  parties  must  be  competent,  though 
competency  does  not  have  the  same  tests  as  ordinarily.  The  intent 
must  be  to  be  man  and  wife.  It  must  be  a  present  intent,  that  is, 
an  agreement  that  they  then  and  there  are  and  are  to  remain  man 
and  wife,  and  there  must  be  a  cohabitation,  or  living  together  in 
the  same  house  as  man  and'  wife.  Such  marriages  are  good  in 
most  of  the  States. 

Statutes  Regulating. — Marriage  is  primarily  a  matter  of  local 
or  State  concern.  Its  results  in  some  regards  may  be  far-reaching 
and  incidentally  involve  social  and  legal  rights  and  relations  out- 
side of  the  State  in  which  the  marriage  is  contracted  or  in  which 
the  family  has  its  home.  These  latter  matters  are  incidental 
merely. 

This  fact  is  recognized  in  the  organization  of  our  State  and 
Federal  governments  and  the  right  of  control  over,  and  the  power 
to  regulate  marriage  and  marital  relations  were  not  given  over 
to  the  Federal  Government  but  were  reserved  to  the  several  States. 
Marriage  is,  therefore,  directly  under  the  control  of  the  several 
State  Governments,  the  Federal  Government  having  no  power 
to  deal  direct  with  the  subject.  Congress  cannot  legislate  on  the 
subject,  nor  can  the  Federal  Courts  deal  directly  with  marital 
rights,  though  they  may  hear  and  determine  issues  otherwise 


280  AMERICAN   ELEMENTARY   LAW. 

properly  within  their  jurisdiction,  notwithstanding  such  decisions 
may  involve  and  require  the  determination  of  marital  questions. 

In  each  of  the  States  of  the  Union  there  are  statutes  regulating 
marriage.  Such  statutes  usually  cover  two  distinct  subjects ;  first, 
the  competency  of  parties  to  enter  into  the  marriage  relation ;  and 
second,  the  manner  and  conditions  under  which  the  ceremony 
may  be  performed. 

The  provisions  of  such  statutes  determining  the  competency 
of  parties  are  mandatory,  and  persons  who  do  not  possess  the 
designated  qualifications  cannot  lawfully  marry  within  the  State 
where  the  statute  is  in  force,  either  according  to  the  Common  Law 
or  in  compliance  with  the  statutory  provisions. 

The  provisions  of  such  statutes  as  to  the  manner  of  celebrating 
marriage  ceremonies  are  usually  directory  merely.  Ordinarily 
these  provisions  deal  with  two  matters.  First,  they,  designate 
the  persons  by  whom  marriage  ceremonies  may  be  performed,  who 
usually  are  specified  officers  of  the  law  and  ministers  or  priests 
of  the  various  religious  denominations.  Second,  they  provide  for 
the  keeping  of  public  records  of  the  marriages  performed  by  is- 
suance of  a  license  and  filing  the  same,  together  with  an  indorse- 
ment by  the  person  performing  the  ceremony,  showing  when 
and  where  and  by  whom  the  marriage  was  performed,  in  the 
archives  of  some  public  office. 

While  statutes  as  to  the  method  of  celebrating  the  rites  of  matri- 
mony are  usually  regarded  as  directory  merely  and  not  prohibit- 
ing or  invalidating  Common  Law  marriages  within  the  State, 
still  it  is  within  the  power  of  the  Legislature  to  make  such  provi- 
sions mandatory  and  exclusive.  "When  this  is  done  Common  Law 
marriage  within  the  State  would  be  unlawful  and  would  not  be 
recognized  by  the  courts. 

The  general  rule  of  law,  subject  to  a  few  important  exceptions, 
is  that  a  marriage  valid  in  the  State  or  country  in  which  it  takes 
place  is  valid  everywhere.  The  principle  exceptions  to  this  rule  are 
first  cases  in  which  marriage  between  parties  who  have  attempted 
to  enter  into  that  relation  is  not  only  forbidden  by  the  laws  of  the 
State  into  which  the  parties  move,  subsequent  to  the  marriage, 
but  is  also  made  a  criminal  offense,  and  second,  cases  in  which  the 
recognition  of  the  marriage  in  the  latter  State  would  interefere 
with  and  overthrow  the  recognized  legal  rights  of  some  citizen  of 
the  latter  State. 


SPECIAL   RELATIONS   AFFECTING  LEGAL.   EIGHTS.  281 

Competency  of  Parties. 

The  parties  must  be  respectively  male  and  female;  all  such 
parties  are  competent,  except  those  subject  to  some  one  or  more 
of  the  following  impediments  or  disabilities: 

(1)  Non-age.     In  males,  under  16;  in  females,  under  14. 

(2)  Physical  defects.  These  must  be  natural  and  incurable 
defects  existing  at  the  time  of  the  marriage. 

(3)  Prior  subsisting  marriage. 

(4)  Want  of  mental  capacity. 

(5)  Relationship  within  the  prohibited  degrees. 

Effects  of  Marriage. 

(1)  It  changes  the  status  of  each  of  the  spouses,  and  they  are 
no  longer  single  persons,  but  are  husband  and  wife. 

(2)  It  combines  them  in  a  family,  or  institution,  of  which  the 
husband  is  the  head,  his  powers  and  responsibilities  varying  in 
different  States  and  countries. 

(3)  Their  cohabitation  thereafter  is  lawful,  and  each  is  legally 
entitled  to  the  consortium  of  the  other. 

(4)  Children  born  to  them  are  legitimate. 

(5)  They  are  thereafter  entitled  to  certain  rights,  such  as 
homestead  exemption,  etc.,  which  single  persons  can  not  acquire. 

(6)  At  Common  Law  all  the  personal  property  of  the  wife, 
and  all  her  choses  in  action  which  are  reduced  to  possession  dur- 
ing the  marriage,  are  vested  in  the  husband.  It  gives  him  the 
right  to  use  and  enjoy  her  real  estate  during  the  marriage,  and, 
under  some  circumstances,  gives  him  an  interest  in  it  after  his 
wife 's  death,  known  as  the  estate  by  courtesy,  and  makes  him  re- 
sponsible for  all  the  wife's  ante-nuptial  debts,  and  for  all  torts 
committed  by  her  during  coverture. 

As  to  the  wife,  it  deprives  her  of  all  her  personal  property, 
including  her  choses  in  action,  which  the  husband  takes  into  pos- 
session ;  subjects  her  real  property  to  use  of  the  husband ;  gives 
her  an  estate  in  portions  of  his  lands  after  his  death,  called  her 
dower,  and  destroys  her  right  and  power  to  make  contracts  for 
herself.  She  is  entitled  to  support  and  maintenance  from  him, 
and  when  he  fails  to  furnish  these,  she  is  his  agent  to  procure 
them. 

These  Common  Law  results  of  marriage  have  been  very  greatly 
modified  by  legislation  in  the  respective  States.    The  provisions 


282  AMERICAN   ELEMENTARY   LAW. 

of  these  statutes  vary  too  greatly  to  attempt  even  to  summarize 
them.  They  extend  from  slight  ameliorations  of  the  woman's 
condition  in  a  few  specified  respects  to  enlargements  of  her  rights 
so  extensive  as  to  put  her  almost  on  business  equality  with  man. 

These  enlargements,  however,  relate  in  the  majority  if  not 
all  the  States  to  two  general  subjects;  first,  the  capacity  to  hold 
property;  and  second,  the  capacity  to  enter  into  contracts.  In 
legal  theory  at  least  the  husband  still  remains  the  head  of  the 
family,  with  power  to  determine  all  questions  which  do  not  relate 
to  the  separate  rights  of  the  wife. 

(7)  Marriage  is  a  status.  That  is,  it  is  a  continuing  condition, 
which  when  once  established  can  not  be  changed  at  the  will  of  the 
parties.  While  marriage  always  results  from  agreement,  no 
simple  agreement  of  parties,  unrecognized  and  unsanctioned  by 
law,  can  establish  the  relation.  As  the  law's  recognition  is 
essential  to  its  establishment  so  its  approval  and  action  is  neces- 
sary to  its  ending,  during  the  life  of  the  contracting  parties. 

Death  is  everywhere  recognized  as  severing  the  marital  tie.  At 
Common  Law  and  in  almost  all  the  States  the  surviving  spouse  is 
recognized  as  having  rights  and  interests  in  the  estate  of  the  de- 
ceased spouse  but  in  none  of  these  jurisdictions  is  there  any  in- 
hibition against  the  remarriage  of  the  survivor. 

(8)  Another  of  the  results  of  marriage  is  the  establishment  of 
a  family.  A  family  may  be  defined  as :  A  legal  institution,  con- 
sisting of  a  number  of  persons  between  or  among  whom  there  ex- 
ists the  legal  right  to  demand  support  and  maintenance  on  the 
part  of  some  and  the  legal  duty  to  provide  support  and  mainte- 
nance on  the  part  of  the  other  or  others,  which  rights  and  duties 
arise  from  status  and  not  from  contract. 

The  normal  family  has  its  origin  in  marriage,  and  consists  of  a 
husband  and  wife  and  children  dependent  upon  them.  Collec- 
tions of  individuals  may  vary  from  this  normal  type,  and  still  be 
recognized  as  a  family;  thus,  the  husband  or  wife  may  die,  or 
there  may  be  no  children,  and  the  family  still  exist.  Or,  if  a  son 
cares  for  his  widowed  mother,  who  lives  with  him,  they  constitute 
a  family.  In  all  of  these  cases,  there  are  several  persons  bound 
together  by  ties  of  kinship,  the  one  owing  the  legal  or  moral  duty 
to  support  the  other  arising  out  of  such  relationship.  It  is  this 
relationship,  giving  rise  to  and  sustaining  this  duty  of  support, 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       283 

which  is  called  status  in  the  definition  above  given.  If  there  be 
no  such  status,  but  two  or  more  persons  agree  to  live  together, 
the  one  to  work  for  and  maintain  the  other,  they  would  not  con- 
stitute a  family;  for  the  basis  of  the  relations  between  them 
would  be  contractual  not  static.  If  the  agreement  were  marriage, 
of  course  status  would  result  thereupon,  and  a  family  would  exist. 
The  distinction  between  families  and  other  groups  of  persons 
living  together  should  not  be  lost  sight  of  for  it  is  frequently 
quite  important  in  determining  the  legal  rights  and  duties  of  the 
persons  constituting  the  group  among  themselves  as  well  as  be- 
tween the  group  or  its  different  members  and  third  persons  or 
the  public. 

Liabilities  of  One  Spouse  for  Acts  or  Omission  of  the  Other. 

Criminally. — Neither  spouse  is  responsible  for  the  criminal 
conduct  of  the  other,  unless  participated  in  by  the  one  sought  to 
be  charged.  There  were  presumptions  at  Common  Law  as  to 
coercion  of  the  wife  when  the  offense  was  committed  in  the  pres- 
ence of  the  husband,  but  these  can  not  now  be  said  to  be  presump- 
tions of  law,  but  are  matters  for  the  jury.  Neither  can  be  com- 
pelled to  testify  in  a  criminal  cause  against  the  other,  except  in 
cases  where  the  offense  was  committed  against  the  witness.  In 
civil  suits  they  are  not  excused  from  testifying,  except  as  to  con- 
fidential relations,  which  can  never  be  elicited,  except  in  criminal 
cases  when  of  advantage  to  the  party  accused. 

Torts. — The  husband  alone  is  responsible  for  torts  committed 
by  him,  though,  as  the  community  property  may  be  taken  to  pay 
judgments  against  him,  the  wife  usually  suffers  with  him.  Hus- 
band and  wife  are  jointly  and  severally  liable  for  torts  of  the 
wife,  unless  the  wife  were  under  duress  by  the  husband,  in  which 
case,  contrary  to  the  general  rule,  she  is  excused. 

Miscellaneous  Effects. — Ordinarily  the  domicile  of  the  husband 
is  the  domicile  of  the  wife.  An  alien  woman  marrying  a  citizen 
of  the  United  States  becomes  a  citizen,  but  a  citizen  marrying  an 
alien  does  not  lose  her  citizenship. 

Upon  the  death  of  either  spouse  the  other  has  preference  in 
administering  the  state,  which  may  be  taken  out  regularly  as  by 
any  one  else,  or  may  be  a  community  administration. 

During  marriage  the  husband  primarily  has  the  right  to  the 


284  AMERICAN   ELEMENTARY  LAW. 

custody  of  the  children,  but  this  is  now  of  little  moment,  as  the 
courts  will  do  what  they  deem  best  for  the  children. 

Divorce. — The  Common  Law  and  the  law  of  all  the  States  with 
the  exception  of  South  Carolina  recognize  divorces,  properly  ob- 
tained through  governmental  agencies.  In  some  States  divorces 
may  be  granted  either  by  the  Legislature  or  through  the  courts, 
but  in  most  of  them  the  function  is  recognized  as  exclusively  ju- 
dicial and  divorce  can  only  be  obtained  by  proper  judgment  of  a 
competent  court. 

At  Common  Law  there  were  two  kinds  of  divorce,  one  from  the 
bonds  of  matrimony,  the  other  from  bed  and  board.  The  former 
is  a  complete  dissolution  or  annulment  of  the  marriage  bond  re- 
storing to  each  spouse,  respectively,  the  status  of  a  single  person; 
the  latter  does  not  completely  annul  the  marital  relation  but  pro- 
vides for  and  legalizes  the  living  apart  of  the  the  spouses,  modi- 
fying and  adapting  their  property  and  contractual  rights  and 
powers  to  the  peculiar  condition  in  which  they  are  situated. 

The  grounds  upon  which  a  judgment  of  divorce  may  be  based, 
the  nature  of  proceedings  necessary  to  obtain  such  a  judgment, 
and  the  adjustment  of  the  property  rights  of  the  spouses  and 
their  respective  relations  to  and  rights  regarding  their  children 
are  regulated  by  the  statutory  provisions  in  the  different  States. 

Actions  for  divorce  affect  the  status  of  parties  and  hence  are 
usually  regarded  as  proceedings  in  rem. 

Where  both  parties  are  bona  fide  residents  of  the  State  in 
which  the  divorce  proceedings  are  instituted  it  is  universally  con- 
ceded that  the  court  can  enter  a  decree  of  divorce  which  must  be 
recognized  as  of  full  force  and  effect  at  any  time  and  in  any  tri- 
bunal in  which  the  question  may  arise. 

It  is  equally  well  settled  that  if  either  spouse  is  a  bona  fide 
resident  and  brings  suit  against  the  other  and  gets  service  on  him 
or  her  within  such  State  or  if  the  defendant  voluntarily  submits 
himself  or  herself  to  the  jurisdiction  of  the  court,  the  court  can 
render  a  decree  of  divorce  which  will  be  good  everywhere. 

When  we  pass  from  cases  in  which  there  is  personal  service  on 
the  defendant  in  the  State  or  voluntary  appearance  by  the  de- 
fendant to  those  in  which  jurisdiction  over  the  defendant  is  de- 
pendent on  some  kind  of  extra-territorial  service  we  encounter 
doubt  and  un certainty. 


SPECIAL   RELATIONS  AFFECTING   LEGAL   RIGHTS.  285 

According  to  the  great  weight  of  authority  among  the  State 
courts  and,  as  had  been  commonly  believed,  according  to  the  de- 
cisions of  the  Supreme  Court  of  the  United  States  until  recently, 
the  proper  court  of  a  State  in  which  either  of  the  spouses  is  a 
bona  fide  resident  could  grant  decrees  of  divorce  which  must  be 
respected  everywhere  even  though  the  service  was  by  publication. 
However,  in  a  recent  case,  Haddock  v.  Haddock,  the  Supreme 
Court  of  the  United  States  has  held  that  the  judgment  of  a  court 
of  a  State  in  which  the  plaintiff  in  a  divorce  proceeding  is  bona, 
fide  citizen,  but  in  which  the  spouses  had  never  lived  together  as 
husband  and  wife  when  based  upon  extra-territorial  service,  is 
not  binding  upon  and  need  not  be  recognized  by  the  courts  of  an- 
other State. 

The  distinction  made  between  this  and  other  decisions  by  that 
court  which  had  recognized  the  validity  of  divorce  granted 
against  a  non-resident  defendant  in  a  State  Court  served  by  pub- 
lication is  based  upon  the  locality  of  the  marital  domicile.  The 
court  held,  first,  that  if  the  spouses  lived  together  as  husband  and 
wife  in  a  certain  State,  and  the  one  abandoned  the  other  and  left 
such  State,  that  the  continued  residence  of  the  abandoned  spouse 
in  such  State  coupled  with  the  fact  that  the  last  marital  domicile 
was  there  gives  to  the  courts  of  such  State  jurisdiction  over  the 
res  involved  in  the  litigation,  and  second,  that  simple  residence  in 
a  State,  no  matter  how  bona  fide  or  how  long  continued,  does  not 
give  the  court  jurisdiction  over  the  res,  and  the  decree  of  divorce 
based  on  extra-territorial  service  and  granted  by  a  court  of  the 
State  in  which  the  parties  have  never  lived  together  as  husband 
and  wife,  is  not  legally  binding  upon  the  courts  of  other  States. 

If  this  decision  is  to  be  taken  as  final  the  law  with  reference  to 
the  effect  of  divorces  granted  in  cases  in  which  the  service  is  ex- 
tra-territorial it  seems  may  be  stated  thus : 

(1)  The  courts  of  the  State  in  which  both  spouses  reside  may 
grant  decrees  of  divorce  that  will  be  valid  everywhere. 

(2)  If  the  parties  do  not  live  in  the  same  State,  the  one  con- 
tinuing to  reside  in  the  State  where  they  last  lived  together  as 
husband  and  wife,  and  who  is  a  bona  fide  inhabitant  of  said  State 
may  obtain  a  divorce  therein  which  will  be  binding  everywhere, 
whether  supported  by  personl  service  within  the  State,  voluntary 
appearance  of  the  defendant  or  extra-territorial  service. 


2S6  AMERICAN   ELEMENTARY   LAW. 

(3)  If  the  spouse  who  has  abandoned  the  State  of  the  last 
marital  residence  and  has  become  a  bona  fide  inhabitant  of  some 
other  State,  procures  a  divorce  in  the  latter  State  based  on  per- 
sonal service  within  the  State  or  voluntary  appearance  of  the  de- 
fendant it  will  be  good  everywhere,  but  if  it  is  based  upon  extra- 
territorial service  it  will  be  good  within  the  State  where  rendered 
and  within  such  other  States  as  recognize  it  voluntarily,  but  no 
other  State  is  compelled  by  the  Constitution  of  the  United  States 
to  recognize  the  divorce. 

(4)  If  upon  or  after  separation  both  parties  remove  from  the 
State  of  the  last  matrimonial  domicile,  that  a  divorce  granted  to 
either  in  the  State  of  his  or  her  residence  will  have  only  such 
effect  as  stated  in  paragraph  three. 

"What  will  be  the  effect  of  Haddock  v.  Haddock  upon  the  State 
courts  and  the  extent  to  which  it  will  be  followed  by  them  cannot 
now  be  stated. 

The  case  aroused  much  adverse  criticism  by  the  bar.  Whether 
this  view  is  concurred  in  by  the  bench  remains  to  be  seen. 

If  we  leave  the  case  of  Haddock  v.  Haddock  out  of  considera- 
tion the  rules  as  established  by  the  great  weight  of  authority  in 
the  State  courts  prior  to  the  rendering  of  that  decision,  are  sub- 
stantially as  follows : 

(1)  The  law  in  cases  coming  under  paragraph  one  above  is  the 
same  as  stated  therein. 

(2)  The  law  as  stated  in  paragraph  two  above  is  as  stated 
therein. 

(3)  The  law  in  cases  covered  by  paragraph  three  would  differ 
from  the  statement  made  therein  and  divorces  gotten  under  con- 
ditions stated  in  that  paragraph  are  good  everywhere  without 
reference  to  the  kind  of  service. 

(4)  The  law  as  to  cases  covered  by  paragraph  four  would  dif- 
fer from  the  statement  made  therein  and  divorces  granted  under 
the  facts  set  out  therein  would  be  good  everywhere  without  refer- 
ence to  the  kind  of  service. 

Stating  the  matter  more  briefly,  before  the  case  of  Haddock  v. 
Haddock  was  decided,  the  law,  as  declared  by  the  great  weight  of 
American  authority,  was  to  the  effect  that  each  State  owed  the 
duty  to  each  of  its  bona  fide  resident  inhabitants  to  determine 
conclusively  his  or  her  marital  status  and  that  the  existence  of 


SPECIAL   RELATIONS   AFFECTING   LEGAL   RIGHTS.  287 

this  duty  carried  with  it  the  power  necessary  to  its  performance 
and  that  its  exercise  was  not  affected  or  limited  by  the  fact  that 
declaring  the  status  of  such  bona  fide  inhabitant  involved  the 
declaration  of  the  status  of  a  non-resident,  and  hence  a  decree  of 
a  State  court  granting  a  divorce  to  a  bona  fide  resident  of  the 
State  though  based  on  extra-territorial  service  was  absolutely 
valid  and  entitled  to  recognition  everywhere. 

Second,  the  case  of  Haddock  v.  Haddock  limits  the  foregoing 
proposition  and  declares  that  the  bona  fide  residence  of  one 
spouse  within  a  State  does  not  give  such  State  or  its  courts  com- 
plete jurisdiction  over  the  res  involved  in  a  divorce  proceeding. 
That  while  the  court  has  sufficient  jurisdiction  to  grant  the  de- 
cree which  must  be  respected  within  that  State,  such  a  judgment 
is  not  of  universal  obligation.  That  to  give  complete  jurisdiction 
over  the  res,  not  only  must  one  of  the  spouses  be  a  bona  fide  in- 
habitant of  the  State  where  the  suit  is  brought  but  the  marital 
domicile  of  the  parties  must  also  have  been  within  the  State,  and 
unless  these  facts  concur  the  judgment  of  divorce  is  not  entitled, 
as  a  matter  of  law,  to  recognition  outside  of  the  State  wherein  it 
was  rendered. 

Husband  and  Wife — This  has  been  sufficiently  presented  in 
discussing  marriage  and  its  effects  and  will  not  be  further 
treated. 

Parent  and  Child. 

The  next  special  relation  which  we  will  consider  is  parent  and 
child.  This  is  altogether  independent  of  any  contract  between 
the  immediate  parties.  It  is  a  natural  one,  that  has  ever  existed 
and  must  ever  exist  in  all  continuing  communities.  Sovereignty 
must  take  cognizance  of  it,  and  make  some  rules  for  its  govern- 
ment. Children  are  of  two  kinds:  natural  and  civil  or  by  adop- 
tion. 

Legitimate  Children. — These  are  natural  children  born  in  law- 
ful wedlock.  They  have  the  highest  rights  and  privileges 
accorded  to  this  relationship.  They  are  entitled  to  the  care  and 
protection  of  their  parents,  and  to  support  and  education  during 
minority. 

These  rights  are,  to  a  great  extent,  incapable  of  effective  en- 
forcement through  the  law.  This  is  usually  expressed  by  saying 
that  the  correlative  duties  owed  by  the  parent  are  of  imperfect 


AMERICAN   ELEMENTARY   LAW. 

obligation.  Still,  the  duties  are  recognized  to  the  extent  that,  if 
the  parent  performs  them,  he  has  no  right  to  compensation  from 
the  child;  and  this  is  true  even  in  cases  where  the  parents  are 
poor  and  the  child  rich. 

If  the  father  does  not  perform  the  duty  of  maintenance,  he  is 
bound  for  necessaries  furnished  the  child.  Some  of  the  authori- 
ties put  this  upon  the  ground  of  implied  agency  on  the  part  of 
the  child,  but  even  these  make  the  father  practically  liable.  The 
cases  are  not  quite  so  strong  when  the  father  is  dead  and  the 
mother  is  sought  to  be  held  liable.  Here  the  relative  conditions 
and  positions  of  the  parties  must  be  considered,  but  usually  some 
way  is  found  to  hold  the  mother  for  necessaries,  unless  it  is  ap- 
parent that  the  credit  was  extended  to  the  child  personally. 
Even  when  the  father  is  sought  to  be  held,  he  will  be  entirely  re- 
lieved by  proof  that  the  credit  was  extended  to  the  child.  This 
duty  of  maintenance  ceases  when  the  child  attains  majority. 
This  occurs,  with  a  male  at  the  age  of  twenty-one  years,  for  the 
female  on  attaining  that  age,  or  upon  marriage;  though,  even 
after  that,  benefits  conferred  by  the  parent  on  the  child  are 
prima  facie  voluntary,  and  will  not  of  themselves  create  an  im- 
plied contract  for  compensation.  The  duty  may  also  be  termin- 
ated by  manumission,  or  freeing  the  child,  and  putting  him  on 
his  own  resources. 

The  rights  of  the  parent  against  the  child  are  the  right  of  rea- 
sonable government  and  control,  and  the  right  to  his  services 
during  his  minority.  The  control  must  be  exercised  reasonably 
in  view  of  all  the  facts  and  circumstances  of  the  case,  and  may  be 
enforced  by  reasonable  and  appropriate  remedies,  including  per- 
sonal chastisement. 

A  child  owes  to  the  parent  obedience  and  respect,  and  must 
render  for  him  such  proper  services  as  the  parent  shall  demand. 
The  parent  can  hire  the  child  to  other  proper  persons  to  perform 
proper  services,  and  the  wages  earned  will  belong  to  the  parent. 
The  State,  however,  has  the  right  to  regulate  such  employment  of 
children  and  prevent  hiring  to  improper  persons,  or  for  improper 
purposes,  or  unlawful  occupations,  or  unreasonable  hours.  These 
comprise  the  principal  rights  and  duties  between  the  parties  in- 
cident to  the  relation. 

The  relation,  however,  carries  with  it  certain  rights  and  duties 


SPECIAL   RELATIONS   AFFECTING  LEGAL   BIGHTS.  289 

between  the  parties  to  it  and  third  persons.  Some  of  these  have 
been  considered,  such  as  the  liability  of  the  parent  for  necessaries 
for  the  child,  and  duty  of  the  child  to  carry  out  contracts  of  em- 
ployment made  by  the  parents.  But,  taking  these  up  again,  we 
find: 

(1)  Neither  the  parent  nor  the  child  is,  by  reason  of  the  rela- 
tionship, responsible  for  the  crimes  of  the  other. 

(2)  Neither  is  on  that  account  responsible  for  the  torts  of  the 
other. 

(3)  Neither  is  responsible  for  the  contracts  of  the  other,  ex- 
cept the  parent  for  necessaries  furnished  the  child  on  the  par- 
ent's credit,  and  the  child  for  the  parent's  contract  of  hiring  the 
child  to  render  reasonable  service. 

Illegitimate  Children. — These  are  natural  children  born  out  of 
wedlock.  If  the  child  be  born  immediately  after  the  marriage  it 
is  still  regarded  as  legitimate.  If  it  be  born  after  the  marriage 
ends  but  within  the  period  of  gestation  it  is  regarded  as  born 
during  wedlock  and  is  legitimate.  A  child  born  during  the  mar- 
riage of  the  parents  is  presumed  to  be  legitimate.  This  presump- 
tion can  only  be  overthrown  by  facts  which  show  to  a  moral  cer- 
tainty that  there  was  no  opportunity  of  access  by  the  husband  to 
the  wife.  If  such  opportunity  exists  proof  will  not  be  heard  to 
show  that  cohabitation  did  not  in  fact  occur  between  husband 
and  wife. 

In  many  States  by  statute  subsequent  marriage  of  the  parents 
of  illegitimate  children  renders  the  children  legitimate.  This  was 
not  the  rule  at  Common  Law. 

At  Common  Law  an  illegitimate  child  did  not  inherit  from  any 
one,  no  matter  what  the  relationship.  He  had  no  right  of  mainte- 
nance or  education  against  the  father,  though  if  the  father  actu- 
ally supported  him  or  expended  money  on  him  in  any  way,  no 
implied  promise  arose  of  repayment.  He  had  an  imperfect  right 
to  maintenance  against  the  mother  which,  under  some  circum- 
stances, would  be  enforced  in  his  behalf  by  proper  public  officers. 

Children  by  Adoption. — Adoption  is  the  process  by  which  one 
person  receives  and  accepts  the  child  of  another  to  be  his  or  her 
child  or  heir. 

Strictly  speaking,  adoption  was  not  known  to  the  Common 
Law.    In  the  United  States  it  is  a  matter  of  State  regulation  de- 
pending upon  statutory  enactment. 
19 


290  AMERICAN   ELEMENTARY   LAW. 

The  most  ordinary  method  of  procedure  under  these  statutes 
is  by  petition  to  some  designated  court  giving  notice  to  the  parent 
or  parents  of  the  person  sought  to  be  adopted  if  living  and  upon 
hearing  having  a  decree  entered  by  the  court  declaring  the  fact 
of  adoption  and  the  rights  and  liabilities  of  the  parties  incident 
thereto.  These  rights  and  liabilities  must  be  such  as  the  statute 
in  the  particular  State  provides.  Usually  the  person  adopting 
assumes  substantially  the  duties  and  acquires  substantially  the 
rights  of  parent,  and  the  person  adopted,  those  of  child. 

The  extent  to  which  inheritance  will  follow  adoption  depends 
upon  the  statute  under  which  the  action  is  taken.  Usually  the 
adopted  person  will  inherit  from  the  one  adopting  as  though  a 
natural  legitimate  child  and  the  one  adopting  will  inherit  as  if 
the  parent.  Ordinarily  the  fact  that  a  person  has  been  adopted 
into  one  family  does  not  prevent  or  interfere  with  his  inheritance 
from  his  natural  parents  or  other  relations.  Not  infrequently  the 
statutes  provide  that  if  the  person  adopted  inherits  anything 
from  the  adoptive  parent,  upon  his  death  the  property  so  re- 
ceived shall  revert  to  the  heirs  of  the  adoptive  parent  and  not  to 
the  heirs  of  the  person  adopting  him. 

The  general  rule  is  that  adoption  having  been  effected  in  ac- 
cordance with  law,  the  status  thus  acquired  cannot  be  revoked  nor 
changed  by  the  parties. 

Usually  upon  the  adoption  of  a  child,  the  right  to  its  custody 
and  control  passes  to  the  adoptive  parent,  though  under  some 
statutes  this  is  not  a  necessary  result. 

Under  some  statutes  adoption  to  the  extent  of  making  the 
party  adopted  an  heir  of  the  person  adopting  him  may  be  ac- 
complished by  the  party  adopting  filing  with  the  proper  officer  a 
written  instrument  executed  with  the  same  formalities  as  a  deed 
for  the  conveyance  of  land.  It  does  not  seem  to  be  necessary  to 
have  the  assent  of  the  party  adopted  or  of  his  parents  to  give 
effect  to  such  an  instrument.  Under  these  statutes  the  parents 
of  the  person  adopted  by  an  instrument  in  writing  executed  as 
required  in  case  of  deeds  to  land  may  transfer  their  parental 
authority  and  custody  over  the  child  to  the  party  adopting  him. 
Such  transfer,  when  accepted  by  the  transferee,  passes  over  the 
parental  control  and  custody  from  the  parents  to  the  person 
adopting  him.  Such  transfer,  contrary  to  the  general  rule  of 
public  policy,  is  irrevocable. 


SPECIAL   RELATIONS   AFFECTING   LEGAL   BIGHTS.  291 

Transfers  of  Parental  Authority. — Not  infrequently  parents 
attempt  to  transfer  their  parental  rights  and  duties  as  to  their 
children  to  third  persons  without  complying  with  the  statutory 
provisions  regulating  such  matters.  Parental  rights  and  duties 
are  not  recognized  as  assignable  at  Common  Law  and  unless  sup- 
ported by  statute  such  transfers  are  non-enforceable  but  are  re- 
vocable at  the  will  of  the  parent.  Such  agreements  are  not  con- 
tracts but  are  regarded  as  licenses  which  protect  the  persons  act- 
ing under  them  from  legal  liability  to  the  parents  for  the  deten- 
tion and  exercise  of  control  over  the  child  prior  to  revocation  by 
the  parent.  If  the  party  having  the  custody  of  the  child  under 
such  an  agreement  refuses  to  deliver  the  child  to  the  parent  on 
demand  the  parent  can  maintain  an  action  of  habeas  corpus  for 
the  child  and  recover  its  custody.  .  The  foregoing  is  the  rule  of 
law  in  the  absence  of  proof  showing  the  parent  to  be  an  improper 
person  to  have  charge  of  the  child.  If  proof  of  that  sort  is  made 
the  court  will  make  such  disposition  of  the  child  as  its  interests 
require. 

Guardian  and  Ward. — A  guardian  is  a  person  who  is  legally 
entitled  to  the  custody  of  the  person,  or  estate,  of  a  living  person 
who  is  laboring  under  some  legal  disability,  and  who  is  called  a 
ward.  The  most  frequent  disabilities  of  this  kind  are  minority, 
mental  unsoundness,  and  habitual  drunkenness. 

The  parents,  first  the  father  and,  in  his  absence,  the  mother, 
are  the  natural  guardians  of  the  persons  of  their  minor  children, 
but  not  of  their  estates.  The  latter  are  appointed  by  the  proper 
court,  preference  being  given  to  the  father,  and  then  to  the 
mother,  unless,  in  the  particular  case,  there  be  some  reasonable 
objection. 

In  case  of  the  death  or  disqualification  of  the  parents,  the 
proper  court  will  appoint  a  guardian  for  the  persons  of  the  minor 
children,  and  if  the  children  have  property  for  which  no  guard- 
ian has  been  previously  appointed,  of  their  estates  also. 

The  guardian  of  the  persons  of  minor  children,  whether  their 
parents  or  one  appointed  by  the  court,  has  the  right  to  the  cus- 
tody of  the  children  and  to  reasonable  control  over  them.  The 
parents,  as  natural  guardians  of  their  persons,  are  not  primarily 
subject  to  the  control  of  any  special  court,  but  any  guardian  ap- 
pointed by  a  court,  either  of  the  person  or  estate,  is  strictly  un- 


292  AMERICAN    ELEMENTARY   LAW. 

der  the  control  of  the  court  appointing  him,  and  must  manage 
both  the  minor  and  his  estate  as  the  court  may  direct. 

When  a  parent  is  guardian  of  the  estate  of  his  child,  he  is  held 
to  the  same  responsibility  as  to  the  property  as  any  other  person 
would  be.  He  may  spend  of  his  own  estate  on  his  child  as  he  sees 
fit,  but  he  can  not  spend  the  property  of  the  child  except  as  the 
law  permits.  Primarily,  the  parent  is  required  to  support  and 
educate  his  child  from  the  parent 's  estate ;  but,  if  this  is  not 
practicable,  he  is  usually  permitted  to  expend  for  the  child's 
maintenance  and  education  the  income  of  the  child's  estate,  but 
can  not  go  beyond  that  without  authority  from  the  court.  If  he 
does  so,  only  in  rare  cases  of  extreme  emergency  will  the  court 
permit  him  to  reimburse  himself  from  the  child's  estate.  The 
guardian  must  keep  strict  accounts  and  make  reports  at  stated 
times  as  to  his  management  of  the  property.  If  he  desires  to  sell 
any  of  the  ward's  property,  he  must  submit  the  facts  to  the  court 
and  get  an  order  from  it,  or  he  can  not  do  so. 

These  general  rules  apply  to  other  guardianships,  as  of  insane 
persons  or  habitual  drunkards,  and  these  need  not  be  further 
considered. 


CHAPTER  XIIL 

SOME  SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES 

(CONTD.) 

RELATIONS  INVOLVING  SUBSTITUTION. 

In  our  study  of  conduct,  under  the  head  of  law,  as  heretofore 
presented,  there  are  certain  relations  in  which  one  person  substi- 
tutes another  for  himself  in  the  exercise  of  some  power,  the  en- 
joyment of  some  right,  or  prosecution  of  some  enterprise,  and 
that,  to  the  extent  of  substitution,  the  latter  becomes  the  other- 
self  of  the  former,  who  thereupon  becomes  legally  entitled  to  all 
the  benefits  arising  from  his  conduct  in  that  behalf,  and,  as  to 
third  parties,  subject  to  all  liabilities  incident  thereto.  The  two 
principal  relations  in  which  this  doctrine  of  substitution  applies 
are  master  and  servant,  and  principal  and  agent. 

Master  and  Servant. 

A  master  is  one  who  employs  another  to  do  for  him  and  under 
his  direction  something  which  does  not  involve  the  master's 
power  to  enter  into  contractual  relations. 

A  servant  is  one  who  undertakes  to  do  for  another  and  under 
his  direction  something  which  does  not  involve  the  master's 
power  to  enter  into  contractual  relations. 

The  relation,  it  is  said,  always  depends  upon  contract  between 
the  parties.  It  is  more  accurate  to  say  that  it  always  depends 
upon  agreement.  For  the  rule  holds  good  here  as  elsewhere 
that  performance  validates  a  voluntary  executory  agreement, 
hence  an  agreement  to  serve  which  lacks  consideration  and  is 
therefore  legally  non-enforceable  will  still  be  good  to  fix  the  re- 
lation of  master  and  servant  provided  it  be  actually  performed 
by  the  rendering  and  acceptance  of  service.  Still  agreements  of 
this  sort  are  so  uniformly  supported  by  consideration  that  we 
will  deal  with  the  relation  as  based  upon  contract,  noting  the 
deviations  from  the  rule  stated,  if  any,  which  apply  to  the  cases 
of  voluntary  service. 


294  AMERICAN   ELEMENTARY  LAW. 

The  relation  is  never  imposed  by  law.  Legal  subjection  of  one 
person  to  another  whereby  the  former  is  made  to  serve  the  latter 
no  longer  exists  in  the  United  States.  Involuntary  servitude  ex- 
ists only  where  it  is  exacted  as  a  penalty  for  crime  and  the  rela- 
tions between  the  government  and  its  officers,  on  the  one  hand, 
and  persons  working  out  sentences  for  crime,  on  the  other,  are 
not  those  of  master  and  servant. 

Under  the  contract  in  its  ordinary  forms  the  master  under- 
takes to  employ  the  servant  and  pay  him  either  specified  or  rea- 
sonable wages  and  superintend  the  work  and  the  servant  under- 
takes to  render  the  required  service  with  reasonable  faithfulness 
and  efficiency  and  obey  the  directions  of  the  master. 

It  is  sometimes  quite  difficult  to  distinguish  this  relation  from 
that  of  principal  and  agent  or  of  employer  and  independent  con- 
tractor. 

According  to  the  later  and  better  authorities,  the  principal  dif- 
ference between  a  contract  of  service  and  one  of  agency  is  that 
under  the  latter  the  agent  is  authorized  to  exercise  his  employer's 
capacity  to  contract,  while  under  the  former  no  such  authority  is 
conferred  upon  the  servant. 

The  distinction  between  the  relation  of  master  and  servant  and 
of  employer  and  independent  contractor  consists  chiefly  in  the 
fact  that  the  master  controls  and  directs  the  servant,  not  only  as 
to  the  general  results  to  be  accomplished,  but  in  the  details  neces- 
sary to  bring  about  the  result.  As  to  all  these  matters,  the 
master's  will  is  dominant  and  the  servant  is  but  his  substitute  or 
instrument  through  which  he  performs  his  work.  The  independ- 
ent contractor,  on  the  other  hand,  as  the  term  implies,  ascertains 
from  his  employer  the  results  that  he  desires  accomplished  and 
undertakes  to  bring  these  about  by  his  own  independent  means 
and  responsibility.  In  this  relation  there  is  no  domination  of 
the  contractor  by  the  employer  but  independent  action  by  the 
contractor  leading  to  personal  responsibility  on  his  part. 

This  distinction  may  be  made  clearer  by  an  example.  If  a  per- 
son owns  a  lot  and  desires  to  build  a  house  on  it  he  may  pursue 
one  of  two  methods  in  doing  so.  He  may  buy  the  material  and 
employ  workmen  and  direct  the  work  himself;  or,  he  may  adopt 
plans  and  specifications  and  employ  a  builder  who  will  himself 
undertake  to  provide  all  material  and  labor  and  complete  the 


SPECIAL   RELATIONS   AFFECTING   LEGAL   RIGHTS.  295 

house  according  to  specifications  and  deliver  it  to  the  owner  in  a 
finished  condition.  If  the  owner  adopts  the  first  of  these 
methods,  the  relation  between  him  and  the  men  whom  he  employs 
to  do  the  work  on  the  house  under  his  control  and  direction 
would  be  that  of  master  and  servant.  If  he  adopts  the  second 
method,  the  builder  who  undertakes  to  construct  the  house  at  his 
own  expense  without  supervision  or  control  except  such  as  may 
be  necessary  to  insure  that  he  complies  with  the  contract,  would 
be  an  independent  contractor.  In  this  case  the  owner  would  have 
no  authority  to  select  the  workmen  or  to  control  or  direct  them 
in  the  work.  His  sole  right  in  the  matter  would  be  to  see  that  the 
builder  complied,  at  the  builder's  own  expense  and  through 
workmen  employed  and  selected  by  him,  with  the  terms  of  the 
building  contract.  In  the  one  case  the  owner  acts  by  and  through 
the  servant  as  his  substitute ;  in  the  other,  he  employs  the  builder 
to  accomplish  designated  results  through  the  builder's  independ- 
ent and  uncontrolled  action. 

Who  May  Be. — As  the  relation  of  master  and  servant  grows 
out  of  agreement,  any  person  who  may  make  other  contracts  may 
agree  to  become  either  master  or  servant.  Persons  under  legal 
disability  are  very  often  found  in  one  or  the  other  of  these  posi- 
tions. So  frequently  is  this  the  case  and  so  important  it  is  that 
they  be  permitted  to  sustain  one  or  the  other  of  these  relations 
that  it  sometimes  seems  that  there  is  a  relaxation  of  the  rules  of 
law  as  to  contractual  power  in  such  agreements.  It  is  possible, 
however,  that  these  cases  are  not  real  relaxtions  but  may  be  ex- 
plained either  on  the  ground  of  contracts  for  necessities,  or  of  the 
validation  of  a  non-enforceable  promise  by  performance,  or  in 
the  case  of  married  women,  on  the  ground  of  implied  agency  or 
agency  by  necessity  for  the  husband.  So  we  may  fairly  state  that 
the  rules  as  to  competency  to  contract  are  the  same  in  agreements 
creating  the  relation  of  master  and  servant  as  in  other  contracts. 

Rights  and  Duties  as  between  Master  and  Servant. — As  the  re- 
lation of  master  and  servant  results  from  agreement  it  follows 
that  the  parties  as  between  themselves  may  fix  their  respective 
rights  and  duties  by  the  agreement  subject  only  to  the  ordinary 
rules  of  law  as  to  consideration,  legality,  and  form. 

To  this  general  rule  there  are  some  exceptions  based  sometimes 
on  the  condition  and  capacity  of  the  servant  as  in  limitations  upon 


296  AMERICAN   ELEMENTARY   LAW. 

the  hours  and  kinds  of  labor  that  may  be  performed  by  children, 
and  in  others,  upon  the  extra-hazardous  nature  of  the  service,  as 
in  the  employment  of  servants  by  railroad  companies.  In  the 
cases  of  extra-hazardous  service,  these  exceptions  are  based  on 
legislation  fixing  certain  liabilities  upon  the  master,  or  recogniz- 
ing that  certain  liabilities  are  fixed  upon  him  by  the  Common 
Law  and,  in  either  case,  forbidding  the  parties  by  agreement  to 
waive  or  limit  such  liability.  They  occur  principally  with  refer- 
ence to  the  doctrine  of  fellow  servants  and  the  defenses  of  con- 
tributory negligence  and  assumption  of  risk.  Notwithstanding 
these  statutes,  it  is  still  true  that  as  to  parties  not  embraced  in 
them  the  general  Common  Law  rule  obtains  that  they  may  fix 
their  respective  rights  and  liabilities  by  agreement. 

It  is  very  unusual,  however,  for  parties  entering  into  this  rela- 
tion to  agree  expressly  and  in  detail  as  to  all  their  respective 
rights  and  duties. 

As  the  relation  is  common,  it  becomes  necessary  for  the  law  to 
take  cognizance  of  it  and  make  general  regulations  to  govern  the 
parties  to  it  in  regard  to  those  points  as  to  which  their  minds  have 
not,  in  fact,  met.  Hence,  we  have  a  number  of  legally  recognized 
rights  and  duties  incident  to  this  relation,  which  the  parties  have 
never  in  fact  contemplated,  and  which  might,  usually,  have  been 
changed  by  them  by  agreement,  but  which  still  govern  them  as 
legal  requirements,  unless  so  modified. 

The  most  important  of  these  duties  of  the  master  are : 

(1)  To  use  reasonable  care  to  provide  the  servant  with  reason- 
ably safe  premises  in  which  to  perform  his  duties  and  the  same 
care  to  keep  them  in  such  condition. 

(2)  To  use  reasonable  care  to  provide  him  with  reasonably 
safe  appliances  with  which  to  operate  and  the  same  care  to  keep 
them  in  such  condition. 

(3)  To  use  reasonable  care  in  selecting  reasonably  competent 
and  faithful  fellow-servants  and  the  same  care  to  see  that  they  re- 
main so. 

(4)  To  make  reasonably  safe  and  proper  rules  for  the  reason- 
ably safe  conduct  of  the  business  and  to  use  reasonable  care  to  see 
that  they  are  observed. 

These  four  rules  cover  the  principal  Common  Law  duties  as  to 
care  owed  by  the  master  to  the  servant.    They  are  rules  requiring 


SPECIAL   RELATIONS   AFFECTING   LEGAL   EIGHTS.  29Y 

reasonable  care,  not  rules  imposing  liability  as  an  insurer.  The 
law  does  not  require  the  master  to  insure  the  safety  of  the  serv- 
ant in  any  of  the  matters  covered  by  these  rules  but  only  to  ex- 
ercise reasonable  care  for  his  safety.  This  duty  of  reasonable 
care  is  a  continuing  one.  It  must  not  only  be  observed  as  to  pro- 
viding premises  and  tools,  selecting  fellow-servants,  and  making 
rules,  but  also  requires  the  use  of  reasonable  care  in  inspecting 
the  premises  and  appliances  and  guarding  the  servant  against 
deterioration  in  either,  and  also  a  careful  watching  over  the 
fellow-servants  so  as  to  ascertain  any  incompetency  or  habits 
of  negligence  and  recklessness.  This  continuing  duty  also  re- 
quires that  reasonable  care  be  exercised  to  see  that  rules  which 
have  been  promulgated  are  fairly  observed  in  the  actual  carrying 
on  of  the  business. 

If  the  master  has  observed  these  continuing  duties  at  Common 
Law,  he  is  not  responsible  to  the  servant  for  hurt  which  may  oc- 
cur to  him  in  the  service,  but  if  he  fails  in  any  one  of  these  duties 
and  the  servant,  without  fault  on  his  part,  is  injured  as  a  direct 
result  of  such  failure  by  the  master,  the  master  must  make  just 
compensation  for  the  injury  received. 

In  connection  with  the  third  rule  above  stated  is  the  Common 
Law  rule  as  to  fellow-servants.  This  doctrine  is  but  an  enlarged 
and  special  statement  of  the  rule  above  announced,  that  if  the 
master  has  used  reasonable  care  in  the  employment  of  fellow- 
servants  and  reasonable  care  to  ascertain  the  competency  and 
trustworthiness  of  the  servant,  he  is  not  responsible  to  one  of  his 
employees  for  injuries  resulting  from  the  wrongful  conduct  of 
his  fellow-servant.  The  master,  having  used  reasonable  care  to 
protect  the  servant,  is  without  fault  as  to  wrongs  committed  by  a 
fellow-servant,  which  the  use  of  reasonable  care  by  the  mnster  in 
his  employment  and  retention  could  not  prevent.  Stated  thus, 
and  with  proper  limitations  as  to  who  are  fellow-servants,  the  rule 
is  a  just  and  proper  one.  Considerations  of  public  policy  and  the 
desire  to  protect  the  weak  against  the  strong  have,  however,  led 
the  Congress  of  the  United  States  and  the  Legislatures  of  many 
of  the  States  to  abolish  this  Common  Law  doctrine  as  to  railroad 
companies  and  the  receivers  and  operators  of  these  roads  so  far  as 
servants  actually  engaged  in  the  operation  of  cars,  is  concerned, 
and  to  materially  modify  it  as  to  other  servants  of  such  masters. 
These  statutory  enactments  cannot  be  discussed  in  detail. 


298  AMERICAN   ELEMENTARY   LAW. 

At  Common  Law,  persons  are  deemed  fellow-servants  if  they 
are  engaged  by  a  common  master  for  the  purpose  of  accomplish- 
ing a  common  purpose  and  are  subject  to  the  same  general  con- 
trol. The  doctrine  as  thus  stated  is  very  broad,  and  many  of  the 
statutory  changes  are  limitations  put  upon  it  narrowing  the  ap- 
plication of  the  doctrine. 

Closely  connected  with  the  doctrine  of  fellow-servants  and  prob- 
ably developed  by  it  is  the  doctrine  of  vice-principals.  This 
may  be  said  to  be  a  Common  Law  limitation  of  the  Common  Law 
doctrine  of  fellow-servants  as  broadly  stated  above.  It  effects  that 
part  of  the  fellow-servant  doctrine  that  requires  that  the  parties 
be  under  the  same  general  direction. 

It  is  apparent  that  in  any  business  conducted  on  an  extensive 
scale  there  will  be  many  grades  of  servants.  For  instance,  in  the 
business  of  railroading  there  must  be  a  department  of  construc- 
tion and  maintenance  presided  over  by  a  general  superintendent. 
If  the  line  of  road  is  extensive,  different  divisions  will  be  estab- 
lished each  being  under  the  supervision  of  a  division  super- 
intendent. Each  of  these  divisions  will  be  subdivided  into  sec- 
tions, each  of  which  will  be  in  control  of  a  section  boss.  While 
the  general  superintendent  has  general  direction  over  the  entire 
line,  his  authority  is  usually  exercised  directly  on  the  division 
superintendent,  and  each  division  superintendent  in  turn,  exer- 
cises control  over  the  section  foreman,  and  the  section  foreman  in 
turn  controls  and  directs  the  section  hand  who  actually  works 
upon  the  track.  This  illustration,  while  it  shows  the  desirability 
of  grades  in  employment,  also  shows  the  opportunity  for  compli- 
cation in  applying  the  fellow-servant  doctrine  so  far  as  it 
involves  the  idea  of  the  parties  being  under  the  same  general  di- 
rection. 

To  meet  this  situation,  the  doctrine  of  vice-principal  arose  as  a 
limitation  upon  the  general  rule  as  to  fellow-servants.  This  doc- 
trine declares  that  if  one  servant  be  given  the  control  and  author- 
ity over  another  and  has  over  him  the  power  of  employment  and 
discharge,  that  the  two  are  not  fellow-servants,  although,  in 
a  broader  sense,  they  are  clearly  under  the  general  direction  of 
the  same  master,  or  some  representative  of  the  master,  of  a  higher 
grade  than  either  of  them.  As  applied  in  the  illustration  given 
above  the  section  foreman  has  direction  and  control  over  the  sec- 


SPECIAL  RELATIONS  AFFECTING  LEGAL  BIGHTS.       299 

tion  hand  with  the  power  to  enforce  obedience  to  his  orders  by 
discharging  the  hand  and  is  therefore,  as  to  the  section  hand,  a 
vice-principal  and  not  a  fellow-servant.  Hence  the  railroad  com- 
pany, the  common  master  of  both,  is  responsible  to  the  section 
hand  for  injuries  directly  resulting  from  the  wrong  of  the  fore- 
man. 

The  vice-principal  doctrine  may  be  stated  thus:  that  if  two 
persons  are  in  the  employ  of  the  same  master,  the  one  having  the 
right  to  direct  the  work  of  the  other  and  to  discharge  him,  the 
one  having  control  is  not  a  fellow-servant  with  the  other  but  is  a 
vice-principal  for  the  master,  and  the  master  is  responsible  to  the 
subordinate  servant  for  injuries  resulting  to  him  from  the 
wrongful  conduct  of  the  superior. 

The  rule,  however,  does  not  work  the  other  way.  So  far  as  lia- 
bility of  the  master  to  the  superior  servant  is  concerned,  he,  and 
the  man  under  his  control,  are  fellow-servants  and  the  master  is 
not  legally  responsible  to  the  vice-principal  for  injuries  resulting 
from  the  wrong  of  his  subordinate. 

N on- Assignability  of  Duty. — We  have  given  a  good  deal  of 
space  to  the  discussion  of  the  doctrine  of  fellow-servants  and  its 
modification  by  the  later  doctrine  of  vice-principal  because  these 
rules  have,  for  a  long  time,  been  firmly  imbedded  in  the  Common 
Law.  A  far  simpler  and  more  satisfactory  solution  of  most  of 
the  difficulties  involved  in  the  situation  is  found  in  the  funda- 
mental doctrine  of  the  non-assignability  of  duty. 

This  doctrine,  broadly  stated,  is  that  the  law,  though  it  permits 
the  delegation  of  the  discharge  of  duty,  never  permits  the  assign- 
ment or  divestitute  of  the  underlying  obligation.  Applying  this 
doctrine  to  the  relation  of  master  and  servant  it  results  that  each 
of  the  duties  of  the  master  enumerated  above  rest  upon  him  and 
the  obligation  cannot  be  shifted  by  him  to  another  so  as  to  relieve 
him  therefrom.  He  may,  and  in  the  great  majority  of  instances 
in  actual  life  he  does,  substitute  another  for  himself  in  discharg- 
ing the  duty.  The  law  recognizes  the  substitution  so  far  as  to 
accept  performance  of  the  duty  by  the  substitute  as  full  dis- 
charge of  the  obligation,  but  the  law  positively  refuses  to  recog- 
nize this  substitution  as  itself  a  discharge. 

Applying  this  general  doctrine  to  the  matter  in  hand  the 
master  must  meet  each  of  the  obligations  resting  upon  him.    If 


300  AMERICAN   ELEMENTARY   LAW. 

he  does  so  in  person,  well  and  good.  If  he  does  so  by  substitute, 
this  is  equally  as  satisfactory.  But  the  appointment  of  a  substitute 
to  perform  a  duty,  not  followed  by  performance,  is  no  fulfillment 
of  obligation.  For  example,  a  master's  business  requires  the  use 
of  dangerous  machinery.  The  law  says  he  must  use  reasonable 
care  in  inspecting  each  machine  at  the  time  he  acquires  it  and 
must  continue  to  use  such  care  to  ascertain  its  true  condition 
after  it  has  been  installed  and  put  in  operation.  If,  in  fact,  the 
master  exercises  such  care,  either  in  person  or  through  a  servant, 
he  is  not  responsible  for  injuries  to  his  servants  resulting  from 
latent  defects  in  the  machine.  If,  however,  the  master  employs  a 
servant  to  inspect  the  machine  for  him  and  makes  most  rigid  re- 
quirements of  him  as  to  the  inspection,  but  the  servant  neglects 
to  inspect  and  another  servant  is  injured  by  reason  of  the  defect 
in  the  machinery  which  could  have  been  discovered  by  the  exer- 
cise of  ordinary  care,  the  master  is  responsible  for  the  directly 
resulting  hurt. 

The  same  is  true  as  to  each  of  the  other  duties  of  the  master 
enumerated  above. 

If  this  doctrine  were  in  fact  properly  applied  to  the  master's 
duties  as  to  the  employment  and  retention  of  servants,  it  is  earn- 
estly believed  that  this  would  eliminate  many,  if  not  all,  of  the 
difficulties  of  the  fellow-servant  and  vice-principal  rules.  It  is 
gratifying  to  note  that  the  broad  doctrine  of  non-assignability  of 
duty  is  gaining  more  and  more  attention  and  recognition,  and 
has,  by  several  courts  of  good  standing,  been  applied  as  to  the 
duty  of  the  master  in  the  employment  of  servants. 

Assumption  of  Bisk. — After  the  master  has  used  this  care,  the 
servant  is  regarded  as  having  assumed  the  risks  incident  to  the 
business  engaged  in.  This  has  two  limitations:  (1)  If  the  serv- 
ant be  young  or  unskilled,  and  does  not  know  the  dangers  inci- 
dent to  the  business,  the  master  should  give  him  warning.  (2)  If 
the  master  is  advised  of  defects,  and  promises  to  fix  them,  the 
servant  is  entitled  to  depend  on  this  for  a  reasonable  time,  and 
his  continuing  in  the  employment  for  such  time,  in  the  belief  that 
the  master  will  keep  his  promise,  is  neither  an  assumption  of  risk 
nor  contributory  negligence.  Continuance  beyond  a  reasonable 
time,  however,  will  be  a  defense  against  the  master's  liability. 

A  number  of  States  have  legislated  on  this  subject  also.    Some 


SPECIAL   RELATIONS   AFFECTING   LEGAL   RIGHTS.  301 

of  the  statutes  are  merely  cumulative,  being  practically  statutory 
declarations  of  the  existing  Common  Law  rules.  Others  of  them 
limit,  more  or  less,  the  Common  Law  doctrine,  some  going  so  far 
as  to  almost  set  it  aside. 

Compensation  and  Reimbursement. — In  all  cases  of  employ- 
ment in  which  the  master  has  agreed  to  pay  a  specified  price  and 
the  service  has  been  rendered  according  to  contract,  the  servant 
is  entitled  to  the  stipulated  wages.  This  is  subject  to  the  rule  of 
law  that  persons  under  legal  disability  are  not  bound  except  for 
necessaries  and  are  bound  for  them  only  for  the  real  value  and 
not  for  the  contract  price,  and  if  the  master  in  any  given  case  is 
under  legal  incapacity  his  obligations  would  be  governed  by  the 
exception  and  not  the  rule.  "Where  the  amount  of  wages  is  not 
agreed  upon  but  services  are  actually  rendered  and  accepted  the 
law  ordinarily  presumes  or  implies  a  contract  to  pay  their  rea- 
sonable value.  To  prevent  such  an  implication,  the  circumstances 
must  be  unusual  and  tend  strongly  to  show  an  intent  to  serve 
voluntarily.  The  right  to  compensation,  of  course,  depends  upon 
rendering  the  service  as  contemplated  by  the  employment. 

Nice  questions  have  arisen  as  to  the  liability  of  the  master  for 
wages  when  the  contract  contemplated  the  continuance  of  the 
service  for  a  definite  term  and  the  servant  partially  performed 
his  agreement,  and  then,  without  fault  of  the  master,  abandoned 
the  employment.  The  weight  of  the  later  authorities  seems  to  be 
that  in  such  cases,  the  servant  is  entitled  to  reasonable  compensa- 
tion for  the  service  rendered  less  the  damage  which  he  occasioned 
the  master  by  the  breach  of  the  contract. 

If  the  contract  contemplates  service  for  a  term  and  the  master, 
without  fault  of  the  servant,  refuses  to  permit  the  servant  to  con- 
tinue in  his  employment  throughout  the  term,  the  master  owes 
the  servant  the  agreed  price  of  the  service  for  the  length  of  time 
it  was  rendered,  if  the  wages  were  agreed  upon,  plus  the  damage 
resulting  to  the  servant  from  the  breach  of  the  contract.  If  the 
rate  of  wages  was  not  agreed  upon,  the  master  owes  the  reasonable 
value  of  the  service  rendered  plus  the  damage  occasioned  to  the 
servant  by  the  breach.  The  proper  measure  of  damage  in  these 
cases  seems  to  be  somewhat  in  doubt.  It  is,  however,  conceded 
that  the  servant  may  use  reasonable  diligence  to  obtain  employ- 
ment of  similar  character  for  the  remainder  of  the  term,  and  if 


302  AMERICAN   ELEMENTARY   LAW. 

he  secures  such  employment,  his  damage  would  be  the  value  of 
his  time  consumed  in  finding  the  employment  plus  the  difference 
between  the  wages  he  would  have  gotten  under  the  first  contract 
and  the  wages  he  actually  received  during  the  term.  If  he  could 
find  no  employment  by  the  exercise  of  reasonable  diligence,  his 
damage  would  be  the  wages  for  the  entire  term,  at  the  price  agreed 
upon,  if  fixed,  or  the  reasonable  value,  if  the  wages  were  not  fixed. 

The  master  owes  the  further  duty  of  reimbursing  the  servant 
for  any  amount  he  may  be  compelled  to  pay  for  damages  occa- 
sioned a  third  person  by  obedience  to  the  commands  of  the  master 
which  the  servant  thought  to  be  lawful  by  reason  of  any  mistake 
of  fact.  If  the  servant  knew  that  he  was  violating  a  legal  right 
of  the  injured  party,  he  would  be  a  joint  tort-feasor  with  the 
master  in  carrying  out  the  command,  and  would  not  be  entitled 
to  reimbursement,  or  even  contribution. 

Servant's  Duties. — The  servant  owes  to  the  master  obedience 
to  all  proper  commands  connected  with  the  employment,  faithful 
performance  of  the  service  he  has  promised  to  render,  care  and 
diligence  as  to  the  interest  of  his  master,  and  also  in  his  conduct 
toward  third  parties,  so  as  not  to  bring  his  master  under  legal  lia- 
bility to  them.  The  servant  must  compensate  the  master  for  loss 
arising  from  the  non-observance  of  these  duties,  or  any  of  them. 

Ending  of  the  Relation. — As  the  relation  arises  from  contract, 
it  may  be  terminated  by  the  same  means — mutual  agreement.  It 
is  ended  by  the  death  of  either  party,  also  by  expiration  of  the 
term  of  employment  and,  if  no  term  is  agreed  upon,  at  the  will  of 
either  party. 

Liability  of  Each  of  the  Respective  Parties  for  Wrong  Done  by 
the  Other. — While  it  is  true  that,  as  between  themselves,  the 
master  and  servant  may  very  largely  determine  what  their  rights 
and  liabilities  shall  be,  it  by  no  means  follows  that  their  agree- 
ments will  be  binding  upon  third  persons.  It  is  a  fundamental 
principle  of  law  that  one  person  can  not,  by  agreement  with  a 
second  person,  relieve  himself  from  liability  to  a  third.  To  ac- 
complish this,  the  third  person  must,  in  some  lawful  way,  assent 
to  the  change  of  his  rights.  Therefore,  we  find  another  important 
body  of  legal  rules  which  govern  the  master  and  servant  in  their 
conduct  toward  third  persons,  and  determine  the  liability  of  each 
to  third  persons  for  acts  or  omissions  of  the  other.    It  must  be 


SPECIAL   RELATIONS  AFFECTING  LEGAL   EIGHTS.  303 

observed  that  no  one  can  relieve  himself  from  the  consequences  of 
his  own  wrong,  as  to  third  persons,  by  the  co-operation  of  others 
in  wrong-doing,  and  so  we  may  state  it  as  a  universal  rule :  If  the 
conduct  complained  of  is  a  violation  of  a  legal  right  of  a  third 
person,  the  guilty  party  is  responsible  to  the  person  injured, 
whether,  as  to  some  other  person,  he  sustained  the  relation  of 
master  or  servant,  or  not. 

With  this,  we  enter  the  secondary  range  of  liability,  that 
is,  those  liabilities  that  result  to  one  person  by  reason  of  his  at- 
tempting to  accomplish  purposes  of  his  own  through  some  other 
person  as  an  instrumentality.  The  old  doctrine  of  the  law  is  that 
what  one  does  through  another  he  does  by  himself,  or  the  doctrine 
of  representation,  or  substitution.  This  doctrine  is  far  reaching 
in  its  application  and  consequences.  In  this  connection  it  covers 
every  case  in  which  one  puts  another  in  to  act  for  him  unless  the 
action  involves  the  exercise  of  the  power  to  contract.  So  far  as 
the  rights  of  the  third  party  against  the  master  for  the  conduct  of 
his  servant  are  concerned,  the  real  inquiry  is,  what  was  the  rea- 
sonably apparent  scope  of  the  employment?  The  contract  be- 
tween the  master  and  servant,  unless  its  terms  were  known  to  the 
third  party,  in  which  case  it  would  be  conclusive  as  to  the  extent 
of  the  substitution,  is  material  only  as  fixing  the  relation  of  the 
parties  as  master  and  servant  and  as  tending  to  show  the  extent 
of  the  substitution.  It  is  to  be  considered  in  the  light  of  all  the 
circumstances  in  aiding  the  inquiry  as  to  what  was  the  reason- 
ably apparent  scope  of  authority.  It  is  by  the  reasonably  appar- 
ent scope  of  authority  that  the  master  is  bound.  This  is  deter- 
mined by  a  reasonable  interpretation  of  the  conduct  of  the  master 
and  the  conduct  of  the  servant  under  the  authority  acquiesced  in 
by  the  master.  If  the  act  resulting  in  hurt  to  the  third  party  was 
within  the  scope  of  his  authority  as  fixed  by  a  reasonable  inter- 
pretation of  the  facts  surrounding  the  transaction,  the  master  is 
liable,  although  in  fact  the  wrongful  act  exceeded  the  actual 
authority  of  the  servant  or  was  even  directly  opposed  to  the  in- 
structions of  the  master. 

Another  basis  for  the  master's  liability  to  third  persons  for  the 
wrong  of  the  servant  is  the  doctrine  of  non- assign  ability  of  duty. 
If  the  master  owes  a  duty  to  a  third  person,  and  delegates  its  per- 
formance to  his  servant,  the  master  is  responsible  to  the  third 


304.  AMERICAN   ELEMENTARY    LAW. 

party  for  injuries  resulting  directly  from  the  wrongful  conduct  of 
the  servant  in  relation  to  the  duty,  whether  such  wrong  consists  in 
affirmative  misconduct  in  an  attempt  to  discharge  the  duty  or 
negative  misconduct  by  failure  to  discharge.  The  reasons  for 
this  doctrine  need  not  be  again  discussed. 


CHAPTER  XIV. 

SOME  SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS  AND  DUTIES 

(CONTD.) 

RELATIONS  INVOLVING  SUBSTITUTION   (  CONTD.) 

Principal  and  Agent. 

A  principal  is  one  who  has  employed  another  called  the  agent 
to  exercise  the  principal's  contractual  powers  and  thus  brincr  him 
into  new  relations  with  third  parties.  Like  master  and  servant, 
it  is  a  relation  involving  the  doctrine  of  substitution.  It  covers 
those  cases  of  substitution  which  do  not  come  under  the  head  of 
master  and  servant.  While  the  substitution  is  for  a  different 
purpose  than  that  in  master  and  servant,  it  is  still  true  substitu- 
tion and  a  great  deal  that  has  been  said  under  the  former  head 
is  applicable  here. 

How  Formed. — Agency  may  be  created  in  several  ways: 

(1)  By  agreement. 

(2)  By  estoppel. 

(3)  Bylaw. 

It  is  customary  to  speak  of  agency  by  necessity  as  an  additional 
subdivision  but  it  seems  that  this  is  but  an  illustration,  or  one 
method,  of  creating  agency  by  law. 

Agency  by  Agreement. — In  agreements  creating  agency  the 
same  rules  of  law  govern  as  do  in  all  other  kinds  of  undertakings. 
In  order  to  form  an  enforceable  executory  contract  creating  and 
sustaining  the  relation  of  agency,  there  must  be  the  four  ordinary 
essentials,  of  contract  viz :  competent  parties,  consideration,  law- 
ful purpose,  and  proper  form. 

The  rules  as  to  competency  of  parties,  so  far  as  affects  the  con- 
tracts of  agency  between  principal  and  agent,  do  not  differ  at  all 
from  those  governing  in  other  agreements.  So  that  any  two 
20 


306  AMERICAN   ELEMENTARY  LAW. 

legally  capable  persons  can  enter  into  an  agreement  by  virtue  of 
which  one  is  to  act  for  and  bind  the  other  within  the  terms  of  the 
contract.  Again,  a  legally  capable  person  can  legally  employ  a 
married  woman  or  a  minor  to  act  as  agent  for  him.  Such  con- 
tract would  be  binding  upon  the  competent  party  as  fully  as  if 
the  other  party  were  an  adult.  The  infant  or  married  woman 
would  not  be  bound  to  carry  out  the  agreement  but  could  repudi- 
ate the  agreement  under  the  same  conditions  that  he  or  she  could 
any  other  agreement  except  one  for  necessaries.  So  long  as  the 
infant  or  married  woman  does  act  as  agent,  the  agreement 
entered  into  by  the  principal  through  such  agent,  is  just  as  bind- 
ing on  the  principal  as  if  the  agent  had  been  legally  competent  to 
contract  for  himself.  This  results  from  the  fact  that  the  agent, 
in  entering  into  an  agreement  for  the  principal,  is  exercising  a 
contractual  power  of  the  principal  and  not  of  the  agent.  The 
agent  is  but  the  means  through  which  the  contractual  power  of 
the  principal  is  extended  and  joins  with  that  of  the  other  con- 
tracting party.  This  power  of  the  principal  is  not  diminished  by 
its  transmission  through  the  non  sui  juris  agent. 

If  the  agent  under  disability  actually  serves  as  agent  and  ren- 
ders service  for  the  principal,  he  or  she  is  as  fully  entitled  to 
compensation  as  if  not  subject  to  legal  disability. 

"When  the  case  is  reversed  and  an  incapable  person,  as  a  mar- 
ried woman,  minor,  or  insane  person,  undertakes  to  become  a 
principal  and  to  enter  into  agreements  through  an  adult  agent, 
the  same  rules  that  we  have  considered  above  apply,  but  they 
work  out  different  results.  It  is  still  the  contractual  "capacity  of 
the  principal  that  is  sought  to  be  exercised,  but  as  the  principal 
in  the  supposed  case  has  only  limited  contractual  power,  the  ef- 
fect upon  the  agreement  is  just  the  same  as  if  the  incapable  prin- 
cipal had  undertaken  to  enter  into  it  in  person. 

Consideration  is  as  essential-  to  support  an  agreement  of  agency 
as  any  other,  but  here  also  an  agency  voluntarily  undertaken,  if 
executed  by  the  agent,  will  bind  the  principal. 

The  purpose  to  be  effected  by  the  agency  must  be  lawful.  The 
law  cannot  undertake  to  sustain  individuals  in  agreements  con- 
trary, either  to  its  express  provisions  or  rules  or  against  public 
policy.  An  attempt  to  create  an  agency  for  an  illegal  purpose 
would  result,  not  in  a  contract  of  agency,  but  in  an  unlawful 


SPECIAL   RELATIONS   AFFECTING  LEGAL   RIGHTS.  307 

conspiracy,  under  which  each  party  would  be  legally  liable  for  all 
wrongs  committed  by  either  within  the  common  understanding. 

There  is  some  difficulty  in  announcing  exactly  the  rules  of  law 
as  to  the  form  of  agency  agreements.  It  is  quite  frequently  said 
that  wherever  the  contract  to  be  entered  into  by  the  agent  must 
be  in  writing  the  authority  of  the  agent  must  be  in  writing  also. 
Though  repeatedly  so  declared  by  high  authority,  the  rule  thus 
announced  is  not  legally  accurate.  There  are  a  number  of  condi 
tions  under  which  oral  authority  may  be  given  to  an  agent  to  exe- 
cute written  contracts  in  the  name  of  the  principal.  For  example, 
a  merchant  verbally  requests  the  clerk  who  does  the  purchasing 
in  the  name  of  the  firm  to  send  a  written  order  for  goods  to  the 
wholesale  dealer  and  sign  the  name  of  the  firm  thereto.  The 
wholesale  merchant  fills  the  order.  The  bill  is  not  paid.  There 
can  be  no  question  that  the  firm  is  bound  by  the  order.  Or, 
changing  the  illustration  somewhat,  if  the  bill  from  the  wholesale 
house  has  come  in  and  it  was  the  understanding  that  the  retail 
merchant  should  give  his  note  for  the  amount  due  and  the  pur- 
chasing clerk,  in  pursuance  of  instruction  from  the  merchant,  or 
even  in  accordance  with  the  general  customs  of  the  business, 
should  make  out  the  note  and  sign  the  merchant's  name  to  it, 
this  would  be  a  valid  note  by  the  merchant.  Both  these  are  illus- 
trations of  written  contracts  entered  into  by  the  principal  through 
an  agent  having  only  parol  authority  for  so  doing. 

The  true  rule  on  the  subject  seems  to  be  that  the  principal  may, 
by  parol,  authorize  an  agent  to  execute  written  contracts  in  the 
principal's  name  in  all  instances  except  those  in  which  the  law 
specifically  provides  that  the  authority  must  be  in  writing.  The 
most  common  example  of  such  requirement  is  found  in  the  Stat- 
ute of  Frauds  with  reference  to  the  execution  of  conveyances  for 
estates  in  land  for  a  term  longer  than  one  year.  ,  In  such  cases, 
that  is,  those  in  which  the  law  so  expressly  requires,  the  author- 
ity must  be  in  writing. 

To  prevent  confusion  it  is  well  here  to  call  attention  to  the  dif- 
ference between  authority  to  make  a  sale  of  land,  and  authority 
to  convey.  The  former  may  be  given  by  parol,  and  if  an  agent 
so  authorized  shall  find  a  purchaser  willing  to  take  the  land  under 
the  terms  specified  by  the  agreement  with  the  principal,  though 
the  proposed  purchaser  could  not  compel  the  principal  to  convey 


308  AMERICAN  ELEMENTARY  LAW. 

the  land  to  him,  still  the  agent,  having  do^e  all  he  undertook  to 
do  for  the  principal,  would  be  legally  entitled  to  his  compensation. 

When  Formed. — The  contract  of  agency  may  precede,  be  con- 
current with,  or  subsequent  to  the  act  by  which  the  agent  binds 
the  principal. 

The  first  two  of  these,  contracts  which  precede  or  are  con- 
current with  the  agency  act,  have  nothing  peculiar  beyond  what 
has  been  pointed  out  in  the  foregoing  discussion  and  need  not  be 
further  considered. 

The  third,  authority  conferred  after  the  act  performed  by  the 
agents,  presents  a  number  of  peculiar  features.  The  agreement 
by  which  a  person  adopts  and  makes  his  own  an  agreement  pre- 
viously made  in  his  behalf  by  one  having  no  authority  to  act  for 
him  is  called  ratification. 

For  ratification  to  take  place  so  as  to  bind  the  principal  and 
the  party  with  whom  the  assumed  agent  entered  into  the  agree- 
ment, five  facts  must  concur,  viz. : 

(1)  At  the  time  the  agreement  was  entered  into  by  the  agent, 
the  agent  must  assume  to  represent  the  subsequently  ratifying 
principal,  and  must  act  in  his  behalf. 

(2)  The  ratifying  principal  must  have  been  in  existence  and 
legally  competent  to  contract  at  the  time  the  assumed  agent  en- 
tered into  the  agreement. 

(3)  The  principal  must  subsequently  give  real  assent  to  the 
agency  act  as  his  own,  and  must  at  this  time  be  competent  to  con- 
tract. 

(4)  The  subsequent  assent  must  be  given  in  the  form  in  which 
antecedent  authority  would  have  been  required  to  be  given. 

(5)  The  act  ratified  must  have  been  lawful  at  the  time  it  was 
performed,  and  it  must  continue  to  be  so  at  the  time  of  the  ratifi- 
cation. 

"When  these  facts  concur,  the  ratification  goes  back  to  the  date 
of  the  agency  act  and,  as  between  the  parties,  vests  the  ratifying 
principal  with  just  such  rights,  and  subjects  him  to  just  such  lia- 
bilities, as  would  have  existed  had  the  agency  act  been  ante- 
cedently authorized.  If  the  rights  of  innocent  third  parties  have 
intervened,  they  will  not  be  cut  off  by  the  ratification. 

Agency  by  Estoppel. — This  exists  when  one  person  has  given 
another  reasonable  grounds  to  believe  that  a  third  person  is  his 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       309 

agent,  and  the  second  party,  influenced  by  this  reasonable  be- 
lief, has  dealt  with  the  third  as  agent  of  the  first,  and  in  so  doing 
has  put  himself  in  such  an  attitude  that  it  would  be  inequitable 
to  permit  the  first  to  deny  the  agency  of  the  third.  Agency  by 
estoppel  is  extended  so  far,  and  s,o  far  only,  as  justice  to  the  de- 
ceived party  requires.  "Whenever  he  is  fully  protected,  the  law  is 
satisfied,  and  will  not  press  the  estoppel  further.  , 

Agency  by  Laio. — Agency  by  law  exists  where  the  law  author- 
izes one  person  to  exercise  for  another  the  latter 's  right  to  con- 
tract. This  is  apparently  a  contradiction  in  terms,  as  the  right 
to  contract  is  the  right  to  create,  modify,  or  destroy  legal  rights 
by  agreement,  and  agreement  implies  the  free  assent  of  the  mind. 
Still,  conditions  arise  in  which  justice  and  public  policy  require 
that  certain  action  be  taken  by  unwilling  parties,  and  in  cases 
of  urgent  necessity  the  law  intervenes  and  in  its  own  name  con- 
fers authority  upon  someone,  usually  a  public  officer,  to  do  the 
act  in  behalf  of  the  unwilling  individual.  To  illustrate,  a  man 
owns  property  and  is  in  debt.  He  does  not  pay  nor  will  he  sell 
the  property  and  apply  the  proceeds  to  the  debt.  By  taking 
the  proper  steps,  the  creditor  can  have  his  rights  as  such  estab- 
lished in  court  and  have  the  proper  officer  of  the  law  to  seize  and 
sell  the  property  of  the  debtor  in  order  to  obtain  funds  with  which 
to  pay  the  debt.  The  officer,  by  the  sale  under  this  legal  author- 
ity, conveys  whatever  interest  and  estate  the  debtor  has  in  the 
thing  sold.  He  thus,  under  authority  derived  from  the  law,  be- 
comes the  instrumentality  through  which  the  property  right  of 
the  debtor  in  the  thing  sold  is  passed  over  to  the  purchaser  and  he 
may  well  be  regarded  as  the  debtor's  agent  by  law  for  such  pur- 
pose. 

Agency  by  necessity  may  also  properly  be  put  in  this  class  of 
agency  by  law. 

Agency  by  necessity  is  sometimes  said  to  exist  under  circum- 
stances which  it  seems  might  well  be  regarded  as  a  proper  basis 
of  implied  contracts  of  agency.  "Wherever  this  is  true  the  proper 
disposition  of  the  case  would  be  to  classify  it  as  agency  by  agree- 
ment. In  those  instances  in  which  agency  cannot  be  implied  as  a 
fact,  that  is,  in  which  no  assent  of  the  principal  can  be  presumed, 
if  the  agency  exists  at  all,  it  must  be  by  implication  of  the  law, 
and  the  case  would  be  properly  included  under  the  present  head. 


310  AMERICAN   ELEMENTARY   LAW. 

Termination  of  Relation. 

In  agency  created  by  agreement,  the  parties  to  the  relation  may 
terminate  it  at  any  time  by  mutual  assent.  Provision  for  the  ter- 
mination of  the  relation  may  be  and  frequently  is  made  in  the 
agreement  creating  it.  This  is#always  true  in  cases  in  which  the 
continuance  of  the  agency  is  expressly  limited  to  a  certain  time, 
or  in  which  it  is  expressly  understood  that  the  agency  is  to  ter- 
minate upon  the  happening  of  a  certain  contingency.  It  is  also 
entirely  permissable  for  the  parties  to  end  their  relation  at  any 
time  by  mutual  agreement.  The  contract  of  agency,  unless  it  be 
one  technically  known  as  an  agency  coupled  with  an  interest,  is 
always  made  subject  to  certain  implied  conditions,  the  happen- 
ing of  any  one  of  which  will  either  itself  end  the  agency  or  be 
sufficient  ground  to  justify  the  other  party  in  withdrawing  from 
it.  The  events  most  usually  having  such  effects  are  death,  in- 
sanity, protracted  sickness,  or  other  cause  resulting  in  permanent 
physical  disability  of  either  party,  or  the  marriage  of  the  principal 
if  she  "be  a  woman.  If  the  principal  be  a  man,  and  the  agency  is 
one  authorizing  the  sale  of  land,  the  marriage  of  the  principal 
and  his  designating  and  occupying  the  land  as  a  homestead  will 
have  the  same  effect 

The  relation  may  also  be  terminated  at  any  time  by  the  with- 
drawal of  either  party.  The  law  will  not  undertake  to  compel  a 
person  to  act  as  agent  for  another.  It  would  be  powerless  to 
compel  faithful  and  efficient  service  if  it  should  undertake  to  do 
so  and,  recognizing  this  inability  on  its  part,  does  not  attempt 
specific  performance  of  agency  agreements  by  the  agent.  For 
somewhat  different  though  practically  the  same  reasons  it  rarely 
undertakes  to  compel  the  principal  to  retain  and  recognize  an 
agent  with  whom,  for  any  cause,  he  has  become  dissatisfied.  The 
relationship  presupposes  special  confidence  and  mutual  accept- 
ability.    These  are  matters  beyond  the  control  of  the  law. 

While  it  is  in  the  power  of  either  party  to  withdraw  from  the 
agreement,  it  is  not  within  his  right  unless  the  agreement  haspre- 
viously  been  broken  by  the  other.  The  one  withdrawing  wrong- 
fully is  responsible  to  the  other  for  all  the  damages  directly  re- 
sulting from  such  conduct.  In  what  these  damages  shall  consist 
and  how  they  are  to  be  measured  depends  upon  the  nature  of  the 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       311 

agency  and  the  facts  of  each  case,  and  it  would  not  be  profitable 
to  undertake  a  discussion  of  them  here. 

Withdrawal  from  the  relation  by  the  principal  is  called  a  re- 
vocation ;  withdrawal  by  the  agent  is  called  renunciation. 

Duties  of  the  Parties  as  Between  Themselves 

While  the  relation-exists,  it  is  one  of  trust  and  confidence,  and 
requires  the  utmost  good  faith  between  the  parties.  The  agent, 
especially,  can  not  use  to  his  own  advantage  information  or  oppor- 
tunities coming  to  him  by  reason  of  his  employment;  but  must 
turn  everything  in  connection  with  his  employment  to  the  ad- 
vantage of  his  employer,  if  it  can  honestly  and  fairly  be  done. 
The  agent  must  faithfully  serve  his  principal,  and  give  to  him 
all  the  time,  energy  and  capacity  which  a  fair  construction  of  the 
agreement  includes.  The  principal  must  pay  his  agent  the  price 
agreed  upon,  or  if  no  agreement  is  made  as  to  compensation,  then 
the  reasonable  value  of  the  agent's  services,  and  must  also  re- 
imburse him  for  any  reasonable  and  proper  expense  he  has  in- 
curred or  liability  he  has  become  subject  to  by  reason  of  the  proper 
performance  of  his  duty. 

Rights  and  Liabilities  as  to  Third  Persons. 

Within  the  scope  of  his  employment,  the  agent  is  the  substi- 
tute, the  other  self,  of  the  principal,  and  as  to  third  persons  not 
otherwise  advised,  it  is  this  active,  substituted  self  which  wills  and 
acts  in  performance  of  the  agency  acts ;  and  his  principal  is  bound 
to  such  third  persons  just  as  if  he  had  actually  been  present  and 
had  willed  and  acted  just  as  the  agent  did  at  the  time.  The  scope 
of  employment,  as  between  the  principal  and  agent  and  others 
having  knowledge  of  them,  is  fixed  by  the  terms  of  the  agreement, 
and  the  instructions  actually  given  by  the  principal  to  the  agent. 
As  to  third  persons  not  so  advised,  the  authority  of  the  agent  is 
limited  to  the  power  which  a  reasonably  prudent  and  capable  per- 
son would  reasonably  believe  him  to  have,  from  all  the  facts  and 
circumstances  of  the  case.  There  are  a  great  many  other  interest- 
ing doctrines  regarding  this  subject,  but  we  must  omit  them  for 
lack  of  time  and  space  in  which  to  deal  with  them. 


CHAPTER  XV. 

SOME    SPECIAL    RELATIONS    AFFECTING    LEGAL    RIGHTS    AND    DUTIES 

(CONTD.) 

RELATIONS  BASED  UPON  CO-OPERATION  OR  COMMUNITY  OF  INTEREST. 

Joint  Actors. 

When  persons  agree  together  to  co-operate  in  the  accomplish- 
ment of  a  common  end,  each  agreeing  to  do  his  part  toward  the 
common  purpose,  they  become  co-actors  and  each  is  responsible  for 
anything  done  by  the  other  in  carrying  out  the  agreed  purpose. 
An  act  is  held  to  be  within  the  common  purpose  if  it  is  so  con- 
nected with  it  that,  under  all  the  facts  and  circumstances,  a  man 
of  ordinary  prudence  and  judgment  would  have  anticipated  it  as 
likely  to  arise. 

If  the  common  intent  is  wrongful  and  unlawful,  the  parties,  by 
reason  of  the  agreement,  become  co-conspirators,  and  when  the 
enterprise  is  entered  upon  in  pursuance  of  the  common  under- 
standing they  become  joint  wrong-doers  or  tort-feasors. 

In  each  case  the  parties  are  jointly  and  severally  liable  to  in- 
jured persons  for  any  damages  which  may  result  to  them  directly 
and  proximately  from  a  violation  of  a  legal  right.  But  there  is 
this  difference :  in  the  first  case,  the  purpose  and  intent  of  the  par- 
ties being  lawful  and  the  violation  of  the  right  of  the  third  person 
not  being  desired,  the  right  of  contribution  exists  between  them,' 
and  if  either  is  compelled  to  pay  the  third  person  he  can  usually 
recover  from  his  co-operator  a  just  share  of  the  amount  paid  out 
by  him;  while  in  the  second  the  parties,  having  designed  to  do 
wrong  and  to  violate  the  law,  the  courts  will  not  attempt  to  adjust 
equities  between  them,  but  will  leave  the  loss  on  him  who  is  com- 
pelled to  pay,  without  giving  any  right  to  contribution. 

Employer  and  Independent  Contractor. 

This  is  a  relation  growing  out  of  contract  by  which  one  un- 
dertakes to  accomplish  for  another  some  desired  purpose  ac- 


SPECIAL    RELATIONS    AFFECTING   LEGAL    RIGHTS.  313 

cording  to  a  general  plan  agreed  upon  by  the  parties,  but  in  which 
the  manner  and  means  of  accomplishing  the  purpose  are  left  to 
the  employee.  As  he  exercises  his  own  judgment  an  to  these  and 
employs  his  own  means  and  agencies  to  bring  about  the  desired 
result,  he  is  called  an  independent  contractor.  It  is  in  this  re- 
spect that  he  differs  from  the  servant.  The  latter  is  subject  to 
the  will  and  judgment  of  the  master  as  to  all  matters  concerned  in 
the  execution  of  the  plan,  while  the  independent  contractor  takes 
the  general  plan  and  works  it  out  by  his  own  means  and  judgment. 
The  employer  here  is  concerned  only  with  the  results.  It  follows 
that,  as  the  independent  contractor  is  acting  for  himself  and  not 
for  his  employer,  the  latter  is  not  responsible  for  the  wrongs  of 
the  former  unless  they  are,  first,  the  result  of  defect  in  the  plans 
furnished  by  and  of  course  agreed  to  and  participated  in  by  the 
employer,  making  him  a  joint  wrong-doer  or  tort-feasor  with  the 
contractor,  or  second,  unless  they  result  from  the  nonperformance 
of  some  duty  resting  on  the  employer,  which  he  employed  the  con- 
tractor to  perform.  Under  the  principles  already  discussed  he 
would  then  be  responsible.  It  is  nearly  always  the  case  that  when 
the  employer  is  responsible  the  contractor  is  also,  but  the  reverse 
is  by  no  means  true,  for  the  contractor  may  be  guilty  of  a  great 
many  wrongs  committed  in  carrying  out  the  details  of  the  work, 
which  were  not  participated  in  by  the  employer. 

The  name  of  this  relation  and,  indeed,  many  of  its  real  charac- 
teristics, would  not  suggest  placing  it  in  this  group  at  all ;  but  as 
the  general  plan  is  agreed  to  by  both  the  employer  and  the  con- 
tractor, everything  done  in  pursuance  of  that  involves  unity  of 
design  and  action,  and  as  to  that  there  is  co-operation  and  com- 
munity of  interests,  and  hence  I  place  it  in  this  class. 

Partnership. 

Partnership  is  an  association  of  two  or  more  competent  persons 
in  a  business  enterprise  in  which  they  combine  either  capital,  skill, 
or  labor,  or  one  or  more  of  these,  for  their  joint  profit. 

Partnership  involves,  and  calls  for  the  application  of,  the  rules 
of  law  governing  both  co-operation  and  substitution.  So  far  as 
each  partner  represents  and  acts  for  himself  he  is  co-operating 
with  his  other  partners  as  they  respectively  act  for  themselves. 
So  far  as  he  represents  and  acts  for  his  partners  he  is  a  substi- 


314  AMERICAN   ELEMENTARY   LAW. 

tute  for  each  of  them.  In  the  language  of  many  of  the  cases 
partnership  is  mutual  agency.  This  only  presents  half  the  truth, 
as  it  is  at  the  same  time  mutual  agency  and  mutual  principalship. 

To  illustrate :  A  desires  to  go  into  business.  He  puts  ten  thou- 
sand dollars  into  the  enterprise  and  employs  B  to  take  charge  of 
and  manage  it  for  him.  Here,  A  is  the  sole  principal  and  B  the 
sole  agent,  and  the  relation  is  one  of  principalship  and  agency. 
Again,  A  and  B  each  desires  to  go  into  business.  Each  has  five 
thousand  dollars.  They  agree  to  combine  their  capital,  skill,  and 
labor  and  to  share  in  the  profits.  This  constitutes  partnership. 
Here  A  is  principal  in  the  business  to  the  extent  of  five  thousand 
dollars,  and  whenever  he  acts  for  the  business,  so  far  as  he  is  effect- 
ing his  own  interests,  he  is  acting  as  principal;  but  B  also  has 
five  thousand  dollars  in  the  concern,  and  when  A  sells  any  article 
for  the  firm  he  passes  B  's  interest  as  well  as  his  own ;  so,  as  to  that, 
he  is  agent.  So  in  everything  either  of  them  does  in  the  business, 
so  far  as  he  acts  for  himself,  he  is  principal ;  so  far  as  he  acts  for 
his  partner,  he  is  agent ;  and  this  condition  is  true  of  each  member 
of  the  normal  partnership. 

A  partnership  is  not  regarded  in  law  as  a  legal  entity  or  person 
separate  from  its  members.  It  is  not,  by  law,  declared  to  have  dis- 
tinct and  separate  legal  rights  or  owe  separate  legal  duties.  Yet, 
in  many  material  ways,  this  conception  asserts  itself.  It  is  the 
prevailing  business  view,  and  is  so  interwoven  in  the  every-day 
affairs  with  which  the  law  deals  that  it  has  been  found  impossible 
to  disregard  it  entirely.  Thus,  we  constantly  read  of  firm  prop- 
erty and  firm  assets,  firm  debts  and  individual  debts  of  part- 
ners, etc. 

Suits  by  and  against  partnerships  must  be  conducted  in  the 
names  of  the  individual  members  and  not  the  name  of  the  firm. 

Partnerships  are  created  by  agreement  of  the  parties,  and  hence 
are  subject  to  all  the  rules  of  Contract  Law.  They  can  be  entered 
into  only  by  natural  persons  having  capacity  to  contract,  or  by 
corporations  duly  authorized  for  lawful  purposes,  which  must  be 
some  form  of  business  undertaken  for  profit.  The  contract  must 
contemplate  the  combination  of  capital,  labor  or  skill  of  the  re- 
spective parties,  resulting  in  a  joint  proprietorship  in  the  busi- 
ness and  its  capital  or  profits,  one  or  both.  The  mutual  promises 
and  contributions  of  the  respective  parties  furnish  the  considera- 


SPECIAL   RELATIONS   AFFECTING  LEGAL   RIGHTS.  315 

tion  to  support  their  several  undertakings.  Each  member  of  the 
firm  has  an  equal  voice  in  the  management  of  the  business,  and 
each,  in  the  absence  of  agreement  to  the  contrary,  is  entitled  to  an 
equal  share  in  the  profits,  though  on  dissolution  the  capital  is  to 
be  withdrawn  in  proportion  to  the  original  contribution.  In- 
equality of  contribution,  coupled  with  very  slight  evidence  sup- 
porting the  contention,  will  be  sufficient  to  show  agreement  for 
participation  in  profits  in  proportion  to  contributions. 

Usually  partnerships  are  terminable  at  the  will  of  either  party. 
If  in  any  case  there  is  a  definite  time  fixed  for  its  continuance,  it  is 
still  within  the  power,  though  not  within  the  right,  of  either  party 
to  end  the  relation,  by  simply  withdrawing  from  it.  He  would,  of 
course,  be  responsible  to  the  other  or  others  for  any  damages  oc- 
curring from  the  breach.  Death  of  either  member  ends  the  firm ; 
so  does  the  withdrawal  of  any  member,  or  the  taking  in  of  a  new 
member.  No  number  of  persons  less  than  the  whole  membership 
of  the  firm  can  form  a  partnership.  Each  member  is  liable  for 
all  the  debts  of  the  firm,  but  has  a  right  of  repayment  from  the 
firm,  if  it  be  solvent,  or  of  contribution  from  the  other  members 
when  the  firm  is  insolvent.  The  interest  of  each  member  in  the 
firm  assets  is  subject  to  be  taken  fpr  his  individual  debts.  This 
is  regulated,  in  most  States,  by  statute,  and  usually  the  levy  is 
made  by  serving  notice  on  some  member  of  the  firm  at  the  place 
of  business,  and  then  selling  the  interest  of  the  debtor  partner. 
The  sale  dissolves  the  firm,  and  the  purchaser  acquires  just  the 
rights  and  interests  which  the  debtor  had  at  the  time  of  the  levy, 
which  will  be  ascertained  by  taking  an  account  of  the  concern 
as  of  that  date. 

According  to  the  weight  of  authority  firm  creditors  have  no  lien 
on  firm  assets,  but  each  of  the  partners  has  a  right  to  see  that  all 
firm  property  is  applied  to  payment  of  firm  debts  before  it  is 
distributed  among  the  members  of  the  firm,  or  to  their  individual 
creditors. 

Partnerships  being  formed  by  contract,  agreements  of  that  kind 
entered  into  by  infants  are  voidable  by  the  infant,  but  binding  on 
the  adult.  So  long  as  the  infant  remains  in  the  firm  he  has  the 
same  rights,  and  is  subject  to  the  same  liabilities,  as  an  adult. 
The  same  general  rules  apply  to  persons  mentally  incapable. 

The  firm  is  responsible  for  all  torts  committed  by  any  member 


316  AMERICAN   ELEMENT  ART   LAW. 

within  the  scope  of  the  partnership  business.  The  scope  of  the 
business  is  determined  here,  as  in  the  case  of  agencies,  by  the 
partnership  contract  if  that  were  known  and  relied  on  by  the  third 
person,  or  by  the  reasonable  interpretation  of  the  conduct  of  the 
parties,  where  the  terms  of  the  contract  are  not  known. 

In  a  number  of  the  States  provision  is  made  by  statute  for 
limited  partnerships.  Under  these  statutes,  a  person  may  con- 
tribute capital  to  a  firm  to  a  designated  amount  and  make  a  pub- 
lic record  to  that  effect  and  can  limit  his  liability  for  the  debts 
of  the  firm  to  the  capital  thus  paid  in  by  him.  If,  however,  he 
takes  any  active  part  in  the  management  of  the  firm,  he  is  as  re- 
sponsible as  the  other  partners. 

Partners  are  of  different  kinds :  (1)  Active,  including  those  who 
take  active  part  in  the  management  of  the  business  of  the  con- 
cern. (2)  Silent,  those  who  are  known  to  be  partners  but  have 
no  voice  in  the  management  of  the  affairs  of  the  firm.  (3)  Dor- 
mant, or  those  who  have  a  voice  in  the  management  of  the  affairs 
of  the  firm  but  who  are  not  known  as  partners.  (4)  Secret,  or 
those  who  are  partners,  but  who  neither  take  part  in  the  affairs 
of  the  firm  nor  are  known  as  partners. 


CHAPTER  XVL 

SOME    SPECIAL    RELATIONS    AFFECTING    LEGAL    BIGHTS    AND    DUTIES 

(CONTD.) 

RELATIONS    BASED    ON    CO-OPERATION    AND    COMMUNITY    OP    INTER- 
EST   (  CONTD.) 

CORPORATIONS. 
General  Definition. 

A  corporation  is  an  entity  created  by  the  supreme  political 
power,  acting  either  alone  or  in  conjunction  with  private  persons, 
having  under  a  prescribed  name  such  rights,  powers,  and  privi- 
leges, and  owing  such  duties  as  are  provided  by  law ;  and  endowed, 
either  perpetually  or  for  a  designated  time,  with  capacity  for  con- 
tinuous existence  and  legal  identity  unaffected  by  change  of  mem- 
bers. 

Public  Corporation. 

An  entity  created  by  the  supreme  political  power,  of  its  own 
volition,  for  governmental  purposes;  having  such  powers  and 
jurisdiction  and  charged  with  such  duties  as  are  provided  by  law ; 
endowed  with  the  capacity  of  continuous  existence  under  a  desig- 
nated name. 

Private  Corporation. 

(1)  A  legal  entity  created  by  the  joint  action  of  the  supreme 
political  power  and  one  or  more  private  persons,  for  some  purpose 
agreed  upon  between  them,  either  wholly  nongovernmental  or,  if 
of  a  public  nature,  prosecuted  for  private  gain,  having,  under  a 
designated  name,  such  rights,  powers,  and  privileges,  and  owing 
such  duties  as  are  provided  by  law ;  endowed,  either  perpetually  or 
for  a  specified  time,  with  capacity  for  continuous  existence  and 
legal  identity  unaffected  by  change  of  its  members. 

(2)  A  legal  entity  created  by  the  joint  action  of  the  sovereign 
and  one  or  more  individuals,  authorized  in  its  own  name  to  act 


318  AMERICAN   ELEMENTARY   LAW. 

for  and  represent  such  private  persons  in  accomplishing  some  pur- 
pose or  purposes,  either  wholly  nongovernmental,  or,  if  public, 
prosecuted  for  private  gain,  agreed  upon  by  the  State  and  such 
individuals;  having  capacity  for  continuous  existence  and  legal 
identity  unaffected  by  change  in  the  individuals  for  whom  it  acts; 
having  such  powers  and  owing  such  duties  as  are  provided  by 
law. 

(3)  A  number  of  individuals  merged  into  one  body  by  the 
joint  action  of  the  sovereign  and  themselves,  or  their  predecessors 
in  right,  for  the  accomplishment  of  designated  purposes ;  possess- 
ing, under  a  designated  name,  the  power  of  succession  and  legal 
identity,  either  perpetually  or  for  a  designated  time ;  and  having 
such  other  rights  and  powers  and  subject  to  such  duties  as  are 
provided  by  law. 

The  corporate  idea  is  so  complex  and  assumes  so  many  different 
phases  that  it  is  extremely  difficult  to  give  a  definition  at  once 
accurate  and  concise. 

The  first  of  the  definitions  above  given  is  designed  to  cover  the 
general  conception  of  the  corporate  entity  in  public,  quasi-pablic, 
and  private  matters. 

The  second,  is  limited  to  the  public  corporation  and  the  last 
three  to  private  corporations  including  therein  gwasi-public  as 
well  as  the  strictly  private. 

The  three  definitions  of  a  private  corporation  are  given  in  order 
to  emphasize  different  views  of  the  subject.  The  two  most  im- 
portant of  these  different  views  are : 

(1)  That  a  corporation  is  a  legal  entity  capable  of  sustaining 
legal  relations;  and, 

(2)  That  a  corporation  is  a  combination  of  individuals,  having 
existence  as  one  body  under  the  law. 

The  first  two  of  the  definitions  of  a  private  corporation  present 
the  legal  entity  idea,  and  the  third,  the  idea  of  the  collective 
individuals.  Both  these  views  must  be  constantly  kept  in  mind, 
and  care  must  always  be  taken  in  dealing  with  the  rights  and 
liabilities  of  a  corporation  under  any  given  state  of  facts,  to  get 
a  clear  conception  as  to  the  proper  meaning  of  the  word  in  that 
connection. 

The  word  entity  means  being,  and  a  legal  entity  means  a  being 
recognized  by  law  as  capable  in  itself  of  having  legal  rights  and 


SPECIAL   RELATIONS  AFFECTING  LEGAL   RIGHTS.  319 

owing  legal  duties.  The  law  so  regards  a  corporation.  And  it 
is  in  this  sense  that  corporations  are  spoken  of  as  artificial  per- 
sons. This  view  is  not  a  legal  fiction  adopted  for  convenience 
merely,  but  represents  a  fact  ordinarily  involved  in  the  corporate 
conception.  It  is  of  great  practical  and  legal  utility,  and  ought 
not  to  be  disregarded. 

While  definitions  one  and  two  of  a  private  corporation  both 
present  the  idea  of  legal  entity,  the  second  makes  more  prominent 
the  fact  that  this  entity  is  created  to  subserve  the  purposes  of, 
and  act  as  an  agent  for,  the  members  of  the  corporation.  This 
thought  seems  occasionally  to  be  lost  sight  of  by  the  courts  so  that 
they  emphasize  and  stress  the  entity  idea  unduly. 

It  is  a  simple  truth  of  common  knowledge  that  persons  desiring 
to  engage  in  certain  businesses  for  their  own  profit  often  in- 
corporate for  such  purpose.  The  corporation  is  brought  into  be- 
ing, not  for  its  own  account  or  advantage,  but  in  the  hope  of 
developing  profit  for  those  who  organize  and  operate  it.  The 
money  that  each  shareholder  pays  for  his  stock  is  only  a  con- 
tribution or  payment  made  by  him  in  the  hope  of  securing  personal 
gain.  The  money  so  paid  is  to  be  used  only  by  the  corporation 
and  by  it  only  in  the  prosecution  of  the  corporate  enterprise. 
The  giving  over  of  the  money  by  the  corporation  to  the  control 
of  any  other  person,  or  its  use  by  the  corporation  for  any  other 
purpose  than  that  designated  in  the  corporate  agreement,  would 
be  not  only  a  diversion  of  the  money  from  its  legally  intended 
use  but  a  subversion  of  the  corporate  purpose.  From  these  facts 
it  seems  apparent  that  the  private  corporation  is  designed  by  its 
members  to  act  as  an  agent  for  them  in  advancing  their  private 
interests  by  the  use  of  the  corporate  capital  by  the  corporation 
for  corporate  purposes,  and  that  this  fact  should  neither  be  lost 
sight  of  nor  ignored  by  the  law. 

The  third  definition  does  not  present  the  idea  of  the  private 
corporation  as  a  distinct  legal  entity  but  stresses  the  thought  of 
the  individual  members.  It  recognizes  that  these  individuals  are, 
by  joint  action  of  themselves  and  of  the  State,  merged  or  combined 
in  exceedingly  close  business  relations  but  still  presents  the  ag- 
gregate members  as  the  corporation.  It  is  apparent  that  this 
idea  falls  somewhat  short  of  conception  of  the  distinct  legal 
entity. 


320  AMERICAN  ELEMENTARY    LAW. 

Conditions  not  infrequently  arise  in  which  the  view  of  the  ag- 
gregate members,  as  constituting  the  corporation,  leads  to  a  much 
simpler  and  more  direct  solution  of  legal  difficulties,  and  as  this 
view  is  absolutely  true  in  itself,  it  should  always  be  kept  in  mind. 

The  advantage  of  this  view  may  be  illustrated  by  a  considera- 
tion of  cases  such  as  the  Sugar  Trust  cases  in  New  York.  A  num- 
ber of  corporations  had  been  formed  for  the  purpose  of  handling 
and  refining  sugar.  By  their  charters,  each  of  these  companies 
had  the  legal  right  to  engage  in  that  business  as  a  corporate 
concern.  The  capital  of  each  had  been  gotten  from  its  share- 
holders to  be  managed  by  it  and  employed  by  it  in  the  prosecution 
of  the  sugar  business  by  that  corporation  in  its  corporate  capacity. 
Later,  it  was  thought  desirable  to  combine  the  several  corporate 
enterprises  into  one  large  sugar  business,  in  which  a  small  number 
of  designated  persons  should  have  complete  control  of  the  entire 
enterprise  and  of  the  business  of  each  of  the  separate  corporations. 
It  was  recognized  that  no  one  of  the  corporations,  considered  as  a 
legal  entity,  could  enter  such  a  combination,  so  some  other  method 
must  be  devised.  The  plan  adopted,  stated  briefly,  was  for  the 
several  corporations  nominally  to  keep  up  their  separate  existence, 
conforming  to  all  legal  rules  and  requirements,  but  that  all  the 
stockholders  or  members  of  the  corporations  should  go  into  a 
combination  of  their  interests  and  appoint  a  small  number  of 
persons,  who,  under  the  authority  thus  received  from  the  aggre- 
gate of  the  stockholders,  should  actually  control  and  manage 
the  entire  business  of  each  and  all  of  the  sugar  companies.  This 
was  done. 

The  State  proceeded  against  the  several  sugar  companies,  charg- 
ing them  with  unlawful  combination  and  the  formation  of  a 
Trust  to  control  the  prices  of  sugar.  The  corporations,  with  a 
great  show  of  technical  truth,  replied  that  no  one  of  them  as  a 
legal  entity  had  taken  any  corporate  action  combining  or  tending 
to  combine  with  any  other  company  and  that  if  combination 
existed,  the  corporations  as  such  were  not  parties  to  it.  These 
facts  were  absolutely  sustained  by  the  records  of  each  corporation. 
The  fact,  however,  remained  that,  in  reality,  the  officers  of  the 
respective  corporations  were  not  in  control  of  the  business  being 
done  by  the  corporation  and  with  its  means  and  facilities,  but 


SPECIAL   RELATIONS  AFFECTING  LEGAL   BIGHTS.  321 

that  a  few  individuals  actually  were  controlling  the  entire  sugar 
industry  as  represented  by  these  corporations. 

Technically  speaking,  the  corporate  entities  had  committed  no 
affirmative  wrong ;  actually,  the  stockholders  had  formed  a  Trust. 
The  practical  questions  presented  to  the  court  on  these  facts 
were: 

(1)  Can  the  stockholders  of  a  number  of  corporations,  by 
agreement  among  themselves,  lawfully  effect  a  combination  of  the 
business  of  the  corporations  so  unifying  it  as  to  divest  each  cor- 
poration of  all  control  over  its  corporate  business  and  center  this 
control  in  a  board  of  managers  selected  by  the  stockholders? 

(2)  If  this  be  unlawful,  will  the  several  corporations  be  legally 
responsible  for  the  misconduct  of  their  respective  stockholders, 
that  is,  were  the  legal  entities  responsible  for  this  unlawful  con- 
duct of  the  members? 

The  Supreme  Court  of  New  York  very  properly  said  that  the 
conduct  of  the  stockholders,  acquiesced  in  by  the  entities,  was  the 
conduct  of  the  corporation,  and  dissolved  the  Trust  and  forfeited 
the  charters  of  the  respective  sugar  companies. 

Enumeration  of  Essentials  and  Powers. — There  are  certain  ele- 
ments or  qualities  without  which  a  corporation  cannot  exist. 
Some  of  these  are  characteristic  of  corporate  being;  that  is,  are 
possessed  only  by  corporations  and  hence  serve  to  distinguish  cor- 
porations from  all  other  legal  conceptions,  combinations,  or  in- 
stitutions. Others  pertain  to  corporations  and  to  other  persons, 
and  combinations  as  well,  and  hence  are  not  characteristic. 

These  essentials  are : 

(1)   Characteristic. 

(a)  Merger  by  law  of  the  individual  members  into  one  body. 

(b)  Capacity  for  continuous  existence  of  the  body  un- 

affected by  change  of  membership,  and  perpetual  sua- 
cession  of  the  members. 
l(2)  Not  characteristic. 

(a)  Power  to  contract  to  some  extent. 

(b)  Power  to  own  and  use  property  to  some  extent. 

(c)  Power  to  sue  and  be  sued  in  collective  capacity. 

(d)  Power  to  have  corporate  name. 
Powers  practically  but  not  absolutely  essential.—* 
(1)  To  have  a  common  seal. 

21 


322  AMERICAN  ELEMENTARY  LAW. 

(2)  To  make  by-laws. 

(3)  To  receive  and  enjoy  special  privileges  or  franchises 
Towers  not  essential  but  usual. — 

(1)  To  issue  transferable  shares  of  stock. 

(2)  To  do  business  without  imposing  liability  upon  its  share- 

holders. 

Essentials. 

Returning  to  the  essentials  of  the  corporate  idea  we  find  the 
distinguishing  qualities  of  a  corporation  are,  first,  merger  by  law 
of  the  individuals  into  one  body,  and  second,  the  capacity  of  this 
body  for  continued  existence  unaffected  by  change  of  its  members, 
and  the  right  of  perpetual  succession  of  the  members.  These 
ideas  are  so  closely  related  that  one  condition  cannot  exist  in  fact 
without  the  other.  Unless  the  different  individuals  are  merged 
into  a  body  which  the  law  recognizes  as  such,  there  could  be  no 
combination  that  would  remain  unaffected  by  change  of  mem- 
bership, nor  could  there  be  any  right  of  perpetual  succession  nor 
legal  substitution  of  one  member  for  another.  While  these  ideas 
are  closely  related,  there  is  enough  of  distinctiveness  in  each  to 
make  it  desirable  to  keep  the  three  in  mind.  The  merger  of  the 
individuals  into  one  body  is  the  act  performed  by  the  sovereign 
and  the  charter  members  of  the  corporation  which  results  in  the 
creation  of  the  corporation.  The  capacity  for  continued  existence, 
unaffected  by  change  of  members,  and  the  legal  succession  of  one 
member  to  another  are  qualities  or  characteristics  of  the  corporate 
being  so  brought  into  existence. 

The  corporate  capacity  for  continuous  existence  and  the  right 
or  power  of  individuals  to  succeed  one  another  as  members  are 
so  closely  connected  that  they  are  very  often  spoken  of  together 
under  the  head  of  capacity  for  perpetual  succession.  It  is  clearly 
inaccurate  to  speak  of  a  continuing  body  as  perpetually  succeeding 
itself.  The  body  continues,  maintaining  its  legal  identity  with- 
out reference  to  the  change  of  individuals  composing  its  member- 
ship. This  continuing  body  is  so  constituted  that  its  members 
may  go  out  and  others  be  substituted  for  them  without  affecting 
its  continuity.  Still  the  continuity  of  the  body,  arid  the  outgoing 
and  incoming  of  different  members,  are  different  things.  In  a 
sense,  they  seem  inconsistent,  and  the  continuity  of  the  body  may 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.  323 

be  said  to  remain,  not  on  account  of  the  change  of  membership, 
but  notwithstanding  such  change. 

When  we  say  that  these  elements  of  a  corporation  are  charac- 
teristic of  it,  we  mean  that  they  exist  in  their  fullness  only  in 
corporations,  and  hence  serve  to  distinguish  corporations  from 
all  other  kinds  of  combinations. 

It  is  true  that  there  are  certain  combinations  known  as  joint 
stock  companies,  in  which  there  is  succession  of  membership  but 
in  these  there  is  not  that  complete  merger  of  the  individuals  into 
one  body  that  the  law  accords  to  corporations,  viewed  either  as ' 
legal  entities,  or  combinations  of  individuals.  Ordinary  partner- 
ships possess  neither  of  these  elements.  They  are  not  regarded 
as  legal  entities  and  every  change  of  membership  changes  the 
partnership  or  firm. 

There  are  other  elements  of  a  corporation  consisting  of  powers 
which  may  be  exercised  by  them.  These  are  not  characteristic 
of  corporations  but  are  possessed  by  them  in  common  with  natural 
persons  and  other  kinds«of  combinations.  Some  of  these  powers 
are  essential  to  corporate  life  arid  activity;  others  are  not  ab- 
solutely essential  but  are  practically  so ;  and  others  are  not  essen- 
tial to  corporate  existence  but  are  helpful  and  usual.  These  dif- 
ferent powers  have  been  enumerated  and  classified  just  above,  and 
will  be  discussed  now  without  special  reference  to  those  classifi- 
cations. 

A  corporation  cannot  live  and  accomplish  any  corporate  purpose 
unless  it  has  a  corporate  name,  and  has  some  power  to  own  and 
use  property,  and  to  contract.  "Without  these  elements  it  could 
engage  in  no  enterprise  and  accomplish  no  purpdse. 

Another  essential  to  a  corporate  being,  as  almost  uniformly 
stated  in  the  authorities,  is  the  power  to  sue  and  be  sued  in  the 
corporate  name.  As  has  been  stated,  capacity  to  have  legal  rights 
and  owe  legal  duties  is  inseparable  from  the  law's  conception  of 
a  person.  Having  a  legal  right  necessarily  involves  having  capa- 
city to  control  others  by  law.  Owing  legal  duty,  necessarily  in- 
volves subjection  to  control  by  law.  Legal  control,  in  the  great 
majority  of  instances,  is  exercised  through  the  courts.  So  that 
declaring  that  a  corporation  may  have  rights  and  owe  duties  is 
legally  equivalent  to  saying  that  it  may  sue  and  be  sued. 

Power  to  have  a  common  seal  and  to  make  by-laws  are  exceed- 


324  AMERICAN   ELEMENTARY  LAW. 

ingly  important  in  corporate  existence.  The  corporate  seal  affords 
a  safe  and  appropriate  way  of  attesting  corporate  action,  and  the 
power  to  make  by-laws  or  rules  for  the  regulation  of  its  business 
is  almost,  if  not  quite,  indispensable  to  corporate  activity. 

The  power  to  receive  and  enjoy  special  privileges  is  an  impor- 
tant one.  These  special  privileges  are  capacities  or  advantages 
not  ordinarily  enjoyed  as  of  common  right.  They  are  usually 
classified  as  franchises  and  immunities. 

A  franchise  is  an  affirmative  privilege,  power,  or  advantage,  not 
exercisable  or  enjoyable  as  of  common  right,  but  which  is  con- 
ferred by  special  grant  from  the  sovereign.  The  two  ideas  es- 
sential to  a  franchise  are,  first,  that  the  privilege  does  not  exist 
as  of  common  right  but,  second,  has  been  received  and  is  held 
under  special  grant  from  the  sovereign.  There  is  a  loose  use  of 
the  term  in  which  it  includes  all  corporate  capacities  or  priv- 
ileges. If  these  are  to  be  regarded  as  franchises  at  all,  they  are 
such  only  in  a  very  limited  sense  and  are  included  in  the 
franchise  to  be  a  corporation. 

In  the  earlier  history  of  corporate  law,  when  corporations  were 
created  only  by  special  grant  the  privilege  thus  conferred  in  fact 
was,  and  was  properly  designated  as,  a  franchise.  The  term  has, 
however,  lost  much  of  its  force  in  this  connection  since  the  passage 
of  laws  authorizing  the  creation  of  corporations  under  general 
enabling  acts,  which  may  be  taken  advantage  of  by  almost  all 
persons.  Still,  as  most  of  the  acts  require  some  special  qualifi- 
cation for  incorporators,  they  can  hardly  be  said  to  be  matters  of 
common  right.  The  other  idea  of  grant  of  authority  from  the 
sovereign  still  remains,  though  it  can  no  longer  be  accurately 
designated  as  a  special  grant.  The  power  to  organize  into  and  be 
a  corporation  is,  therefore,  still  a  franchise.  It  is,  however,  a 
franchise  enjoyed  by  the  incorporators  or  members  of  the  cor- 
poration, and  not  by  the  corporate  entity  which  results  from  the 
exercise  of  this  franchise  by  the  incorporators. 

Franchises  are  usually,  if  not  always,  affirmative  privileges  or 
powers,  authorizing  action. 

Negative  privileges  are  properly  called  immunities.  These 
rarely,  if  ever,  authorize  action  or  confer  positive  rights.  They 
are  rather  exemptions  from  burdens  that  are  born  by  persons 
generally.    Probably  the  most  common  example  of  immunity  is 


SPECIAL   RELATIONS   AFFECTING  LEGAL   RIGHTS.  325 

freedom  from  taxation.  The  general  rule  of  law  is  that  taxation 
should  be  equal  and  uniform.  If  the  law  relieves  any  person, 
natural  or  artificial,  from  liability  from  his  proper  share  in  this 
burden,  such  exemption  would  be,  not  a  franchise,  but  an  im- 
munity. 

Another  of  the  powers  usually  enjoyed  by  a  corporation,  though 
by  no  means  essential  to  corporate  being,  is  the  privilege  of  issuing 
shares  of  stock  as  evidence  of  membership  and  of  rights  in  the 
corporation.  Such  shares  are  exceedingly  convenient  as  evidence 
of  the  respective  rights  and  liabilities  of  members  as  among  them- 
selves and  in  the  corporation. 

Shares  of  stock  are  so  closely  connected  with  membership  in 
the  corporation  and  with  corporate  capital,  that  further  discussion 
of  them  is  deferred  until  we  reach  those  subjects. 

Another  ordinary  incident  to  corporate  operations  is  freedom 
of  its  members  from  liability  for  debts  of  the  corporation  beyond 
the  amount  represented  by  the  shares  held  by  each.  This  limited 
liability  is  not  essential  to  corporate  organization.  In  England 
and  Scotland,  there  is  no  such  limit  unless  special  provision  there- 
for is  made  in  the  charter.  The  prevailing  rule  in  the  United 
States,  however,  is  that  the  stockholders  of  a  corporation  are 
not  bound  for  its  debts.  Each  stockholder,  upon  subscription, 
owes  the  corporation  for  the  full  amount  of  the  face  value  of  the 
shares  held  by  him,  and  at  all  times  thereafter  such  balance  as 
may  remain  unpaid  on  this  subscription.  Provision  is  frequently 
made,  in  case  of  insolvency  by  the  corporation,  for  the  collection 
of  any  debt  due  from  the  shareholder  to  the  corporation  for  his 
shares,  and  the  application  of  the  money  to  the  debts  of  the  con- 
cern. This,  however,  is  not  making  the  shareholder  pay  the  debt 
of  the  corporation.  It  is  simply  compelling  him  to  pay  his  own 
debt  to  the  corporation  and  passing  the  money  to  the  corporate 
creditor  or  creditors. 

Whether  or  not  the  members  of  corporations  created  by  any 
State  or  by  the  Federal  Government  shall  be  liable  for  all  the 
debts  of  the  concern,  or  to  some  less  extent,  or  not  at  all,  is  de- 
termined by  the  law  governing  the  creation  of  the  corporations. 
While  the  American  rule  is,  as  stated,  that  the  shareholder  is 
not  responsible  for  the  debts  of  the  concern,  this  is  not  of  universal 
application.  Quite  frequently  the  shareholder  is  made  responsible 


326  AMERICAN   ELEMENTARY   LAW. 

for  the  debts  of  the  company  to  an  amount  equal  to  the  full  face 
value  of  the  shares  held  by  him.  In  such  cases,  if  the  shareholder 
has  not  fully  paid  for  his  shares,  he  is  liable  for  the  balance  as 
for  a  debt  due  the  corporation,  and  in  addition  is  liable  to  the 
creditors  in  an  amount  not  to  exceed  the  full  face  value  of  the 
shares.  If  he  has  paid  for  his  shares  in  full  he  is  only  liable  for 
the  item  last  named. 

Different  Kinds. 

Corporations  are  usually  divided  into  public,  gwom-public,  and 
private  corporations. 

Public  Corporaions. — Public  include  those  that  are  organized 
for  governmental  purposes.  Such,  for  example,  as  the  United 
States  Government,  the  several  State  Governments,  and  incorpo- 
rated cities  and  towns. 

Less  closely  organized  political  subdivisions,  such  as  counties, 
school  districts,  etc.,  are  frequently  called  giwm'-corporations,  thus 
indicating  the  lack  of  compactness  and  thoroughness  of  organ- 
ization. The  doubt  implied  in  the  use  of  the  qualifying  term 
quasi  relates  to  this  lack  of  organization,  and  not  to  the  public 
nature  nor  the  purpose  for  which  the  imperfect  organization  is 
provided.  As  public  corporations  of  different  sorts  are  dealt 
with  in  another  connection,  they  need  not  be  further  considered 
here. 

Quasi-Public  Corporations. — This  term  is  frequently  used  to 
indicate  corporations  which,  though  organized  for  private  gain, 
still  subserve  public  purposes,  such  as  railroad  and  telegraph 
companies,  water  and  light  companies,  etc.  Here  the  doubt  im- 
plied in  the  word  quasi  relates,  not  to  the  organization,  nor  to 
the  fact  of  corporate  life,  but  as  to  whether  or  not  the  corporation 
should  be  regarded  as  a  public  or  private  enterprise. 

The  activities  and  businesses  pursued  by  these  corporations  are 
essentially  public  in  their  nature,  but  when  private  individuals 
organize  and  operate  such  companies  it  is  always  with  the  view 
to  their  individual  gain.  The  public  nature  of  the  business  makes 
the  company  a  public  utility  and  subjects  it  and  its  operations  to 
special  regulation  and  supervision  which  would  not  be  tolerated 
as  to  strictly  private  enterprises.  Yet  the  capital  employed  and 
the  profits  earned  and  the  management,  save  as  affected  by  the 


SPECIAL   RELATIONS   AFFECTING   LEGAL   RIGHTS.  327 

special  supervision  and  regulation  above  referred  to,  are  all 
private. 

It  is  not  surprising  that  the  law  has  found  some  difficulty  in 
correctly  classifying  these  companies.  It  has  been  quite  cus- 
tomary to  deal  with  them  under  the  title  of  quasi-public  corpora- 
tions. The  tendency  of  the  later  authorities,  however,  is  to  re- 
gard them  as  private  concerns  and  to  deal  with  them  as  private 
corporations.  Much,  if  not  all,  that  has  been  or  will  be  said  in 
the  text  regarding  strictly  private  corporations  is  equally  ap- 
plicable to  these. 

Private  Corporations. — As  indicated  in  the  preceding  para- 
graph, and  by  the  definitions  heretofore  given,  private  corpora- 
tions include  all  those  organized  for  the  purpose  of  private  gain, 
whether  the  business  or  enterprise  in  which  they  engage  is  strictly 
private  or  governmental  in  its  nature.  Private  purposes  for 
which  corporations  may  be  chartered  is  a  matter  of  statutory 
regulation,  it  being  one  of  the  fundamental  rules  of  corporate 
law  that  private  corporations  cannot  be  created  by  private  in- 
dividuals without  express  authority  of  written  law. 

The  several  State  Governments  can  authorize  the  creation  of 
private  corporations  for  any  and  all  purposes  except  so  far  as 
they  are  forbidden  to  do  so  by  the  Constitution  of  the  United 
States  or  of  the  respective  States.  There  is  no  express  authority 
in  the  Constitution  of  the  United  States  for  the  creation  of  cor- 
porations by  Congress,  and  no  such  general  power  exists.  Con- 
gress may,  however,  charter  gwasi-public  corporations  whenever 
doing  so  is  reasonably  necessary  to  enable  the  Federal  Government 
to  effectively  exercise  any  of  the  powers  conferred  upon  it  by  the 
Constitution.  It  is  under  this  implied  power  that  National  Banks 
are  chartered,  and  that  a  few  railroad  companies  have  been  created 
by  Congress. 

Stock  Corporations. — By  far  the  most  important  class  of  private 
corporations  are  those  which  are  organized,  or  at  least  capitalized. 
on  the  basis  of  shares  of  stock,  and  usually  known  as  stock  cor- 
porations. Our  subsequent  treatment  of  the  subject  will  be 
largely  confined  to  companies  of  this  kind. 

How  Formed. — It  is  customary  to  say  that  private  corporations 
are  created  by  the  State.  This  is  true  to  the  extent  that  the  State 
must  always  assent  to  and  take  part  in  such  creation.     It  is,  how- 


328  AMERICAN  ELEMENTARY   LAW. 

ever,  misleading  in  so  far  as  it  seems  to  carry  the  idea  that  a 
private  corporation  may  be  brought  into  being  by  the  action  of 
the  State  alone.  This  cannot  be  done.  The  assent  and  co- 
operation of  the  members  of  the  private  corporation  are  as  es- 
sential to  its  creation  as  is  action  by  the  State.  Neither  Con- 
gress nor  the  Legislature  of  any  State  can  authoritatively  require 
any  person  or  collection  of  persons  to  invest  their  money  or 
engage  in  any  designated  business  enterprise.  This  can  no  more 
be  done  under  the  guise  of  chartering  a  private  corporation  than 
by  any  other  method.  It  may,  therefore,  be  taken  as  settled  law, 
that  co-operation  between  the  government  and  private  individuals 
is  essential  to  the  creation  of  any  private  corporation. 

The  foregoing  statement  is  not  true  as  to  public  corporations. 
Each  State  may  create  such  political  subdivisions  within  its  bor- 
ders and  give  to  them  such  corporate  organization  as  it  sees  fit,  so 
long  as  it  does  not  interfere  with  vested  private  rights  in  so  do- 
ing. The  State  can  change  the  boundaries  of  counties  or  school 
districts  as  it  sees  fit,  taking  care  always  to  protect  the  vested 
rights  of  the  creditors  of  the  former  county  or  district.  It  can 
withdraw  or  repeal  the  charter  of  a  city  and  substitute  an  en- 
tirely new  form  of  city  government  as  it  sees  proper,  provided 
always  it  protects  the  vested  rights  of  creditors  and  of  others  who 
would  be  affected  by  the  change. 

The  validity  of  such  action  by  the  State  is  not  dependent  upon 
the  assent  of  the  individuals  living  in  the  territory  thus  dealt 
with.  It  is  true  that  such  action  is  very  rarely  taken  except  upon 
request  or  consent  of  the  citizens  to  be  affected.  This,  however, 
is  due  to  a  sense  of  propriety  and  not  lack  of  governmental 
authority. 

At  Common  Law. — It  is  said  that  at  Common  Law  there  were 
four  ways  of  creating  corporations:  By  Common  Law  grant,  by 
grant  by  the  king,  by  prescription,  and  by  act  of  Parliament. 

The  first  and  second  of  these  methods  have  no  application  to 
American  law  and  cannot  be  regarded  as  having  been  brought 
over  from  England  into  our  American  system.  Whether  or  not 
a  private  corporation  can  be  created  within  the  United  States  by 
prescription.  I  have  not  found  decided;  but  as  there  can  be  no 
Common  Law  grant  or  grant  from  the  Executive  Department  to 


SPECIAL   RELATIONS   AFFECTING   LEGAL   EIGHTS.  329 

form  the  presumptive  basis  of  such  prescriptive  right,  it  is 
practically  certain  that  no  such  corporation  could  exist. 

By  statute. — Practically  the  sole  method  of  creating  private 
corporations  within  the  United  States  is  by  legislative  action. 
In  those  cases  in  which  the  Federal  Government  may  create  pri- 
vate corporations  it  acts  through  Congress.  The  States  act 
through  their  respective  Legislatures. 

There  is  nothing  in  the  Federal  Constitution  expressly  con- 
ferring the  power  to  charter  private  corporations  on  any  depart- 
ment of  the  government.  After  protracted  controversy  it  is  now 
the  settled  doctrine  that  Congress  can,  in  the  exercise  of  its  gen- 
eral legislative  powers,  or  for  the  benefit  of  the  whole  Union , 
charter  private  corporations  as  an  incident  or  means  for  properly 
carrying  out  any  of  the  express  powers  conferred  upon  the  Fed- 
eral Government.  Congress  also  has  the  power  to  create  private 
corporations  within  the  District  of  Columbia,  and  in  any  Ter- 
ritory within  Congressional  jurisdiction  as  such. 

There  are  two  methods  of  creating  corporations  by  legislative 
action;  one,  by  special  act  chartering  the  particular  corporation 
created  thereby ;  the  other,  by  passing  a  general  law  authorizing 
the  formation  of  corporations  for  designated  purposes  and  in 
designated  ways  by  persons  possessing  designated  qualifications. 
These  laws  are  known  as  general  enabling  acts. 

The  Federal  Constitution  does  not  prescribe  how  private  cor- 
porations may  be  created  by  Congress  so  that  in  the  instances  in 
which  Congress  is  competent  to  act,  it  may  authorize  corporations 
either  by  special  charter  or  by  general  enabling  act.  It  has  in 
fact  pursued  both  methods,  and  its  action  under  each  method  has 
been  sustained  by  the  Supreme  Court  of  the  United  States. 

In  the  absence  of  inhibition  in  the  State  Constitution  the 
Legislature  may  adopt  either  of  these  methods  to  the  exclusion 
of  the  other,  or  may  use  both  concurrently.  In  several  of  the 
States,  there  are  provisions  in  the  Constitution  against  creating 
private  corporations  by  special  act.  The  purpose  is  to  prevent 
the  Legislature  from  conferring  special  or  monopolistic  privileges 
or  franchises  upon  particular  corporations. 

Enabling  acts  specify,  with  more  or  less  particularity,  the  pur- 
poses for  which  corporations  may  be  created  under  them.     Natur- 


\ 

330  AMERICAN   ELEMENTARY   LAW. 

ally,  these  purposes  differ  somewhat  in  the  different  States  though 
there  is  fair  uniformity  among  them  with  regard  thereto. 

Powers. — As  private  corporations  can  only  be  created  by  the 
joint  action  of  the  government  and  of  private  individuals,  it  is 
evident  that  the  agreement  between  the  State  and  these  individ- 
uals from  which  the  corporation  results  is  the  standard  and 
measure  of  the  rights  and  powers  possessed  by  the  corporation. 
These  powers,  speaking  in  very  general  terms  and  yet  announcing 
a  mandatory  rule  of  law,  are  to  carry  out  the  corporate  enterprise 
by  means  of  the  corporation  as  an  active  agency.  This  is  the 
real  intent  and  purpose  of  the  agreement ;  for  this  it  is  entered 
into.  Strictly  speaking,  neither  party  to  the  agreement,  that  is, 
neither  the  State  nor  the  members  of  the  corporation  collectively 
nor  singly,  has  any  legal  right  to  add  to  or  take  from  this  agree- 
ment, or  to  disregard  or  violate  it.  The  corporation  resulting 
from  this  agreement  is  equally  bound  by  it,  not  as  a  party  to 
the  contract,  but  as  a  creature  deriving  its  life  therefrom. 

It  is  readily  apparent  that  it  is  very  important  to  have  correct 
legal  ideas  concerning  this  agreement,  how  it  may  be  entered  into, 
in  what  it  consists,  and  the  rules  of  law  by  which  it  is  to  be  inter- 
preted. These  matters  will  be  considered  more  carefully  under 
the  head  of  Charters  and  Membership. 

The  powers  of  a  corporation  are  of  three  general  classes : 

(1)  Those  implied  by  law  as  necessarily  involved  in  corporate 
existence. 

(2)  Those  expressly  conferred  by  the  charter. 

(3)  Those  implied  by  law  as  reasonably  necessary  to  enable 
the  corporation  to  carry  out  the  powers  expressly  conferred  by 
its  charter. 

The  powers  incident  to  corporate  existence  are  the  following : 

(1)  To  have  continuous  existence  for  the  term  limited  in 
the  charter. 

(2)  To  sue  and  be  sued  in  its  corporate  name. 

(3)  To  contract  to  the  extent  necessary  to  carry  out  the  cor- 
porate purpose. 

(4)  To  own  and  use  property,  both  real  and  personal,  to 
enable  it  to  carry  out  its  purpose. 

(5)  To  have  a  common  seal. 

(6)  To  make  by-laws. 


SPECIAL.   RELATIONS   AFFECTING   LEGAL   RIGHTS.  331 

Powers  expressly  conferred  by  the  charter  depend,  in  each  case, 
upon  the  charter  of  the  corporation  and  its  legal  construction. 
It  is  to  prevent  undue  discrimination  in  favor  of  particular  cor- 
porations in  the  grant  of  these  powers  that  a  number  of  the  State 
Constitutions  forbid  the  Legislatures  to  charter  corporations  and 
require  them  to  pass  general  enabling  acts  which  will  be  uniform 
as  to  all  corporations  created  under  them. 

There  is  some  difference  of  opinion  as  to  the  exact  force  and 
scope  of  the  doctrine  of  powers  implied  in  behalf  of  the  corpora- 
tion as  incidental  to  those  specially  conferred.  By  some  courts 
it  is  said  that  the  law  will  imply  all  such  powers  as  are  proper  to 
be  exercised  in  carrying  out  the  express  power.  Other  courts  say 
that  the  power  must  be  reasonably  necessary  to  carry  out  the 
express  power,  while  still  others  say  that  the  powers  must  be 
necessary.  The  rule  announced  in  the  second  expression,  that  is, 
that  those  powers  which  are  reasonably  necessary  to  the  proper 
carrying  out  of  those  expressed  in  the  charter,  and  none  others 
will  be  implied,  is  sustained  by  principle,  and  apparently  by  the 
weight  of  authority. 

Ultra  Vires. — It  is  familiar  American  law,  though  the  rule  is 
different  in  England,  that  a  corporation  has  no  powers  not  con- 
ferred by  charter  and  that  the  three  classes  of  powers  above  enu- 
merated cover  all  that  are  conferred,  so  that  anything  done  or 
attempted  to  be  done  beyond  these  powers  is  ultra  vires. 

There  is  a  great  deal  of  confusion  on  this  subject,  and  much 
of  it  is  attributable  to  a  loose  use  of  the  words,  including  in  them 
acts  and  omissions  which  are  open  to  other  legal  objection  besides 
mere  want  of  authority.  The  true  meaning  of  the  term  is  beyond 
power,  that  is,  simply  unauthorized,  and  they  should  be  limited 
to  cases  in  which  the  transaction  is,  in  its  nature,  unobjectionable, 
but  is  outside  the  charter  powers  of  the  corporation. 

As  to  agreements. — It  is  as  much  beyond  the  lawful  authority 
of  a  corporation  to  enter  into  an  illegal  agreement  as  it  is  of  an 
individual,  but  such  attempt  at  contract  fails,  not  because  the 
charter  of  the  corporation  did  not  authorize  it  to  enter  into  it, 
but  for  the  more  fundamental  reason  that  the  agreement,  in  Its 
nature,  is  contrary  to  law,  and  will  not  be  recognized  and  enforced, 
without  reference  to  the  particular  parties  who  attempt  to  enter 
into  it.     We  must,  therefore,  discard  from  our  present  consider- 


332  AMERICAN   ELEMENTARY   LAW. 

ation  all  agreements  which  are  affirmatively  unlawful,  leaving 
them  to  be  dealt  with  in  the  books  on  Contracts,  and  confine  our- 
selves to  such  contracts  by  corporations,  or  their  representatives, 
as  are  in  themselves  permissible,  but  are  beyond  the  powers  of 
the  particular  company  whose  conduct  is  under  investigation. 
We  will  find  it  profitable  here  to  separate  agreements  from  torts. 

An  ultra  vires  agreement,  considered  and  judged  by  itself,  un- 
aided by  other  facts  or  circumstances,  is  never  enforced  by  law. 
That  is,  an  ultra  vires  agreement,  unexecuted  on  both  sides,  can 
not  be  the  basis  of  a  legal  right  or  legal  duty.  No  action  can  be 
maintained  on  it  to  compel  specific  performance  of  the  under- 
taking, nor  for  damages  for  refusal  to  perform.  On  the  other 
hand,  such  an  agreement,  fully  performed,  will  be  recognized  as 
a  sufficient  basis  for  rights  acquired  and  vested  thereunder,  and 
neither  party  can  maintain  an  action  for  rescission  and  to  be  put 
in  statu  quo  because  of  such  defect  in  the  agreement.  In  these 
extreme  cases  we  have  no  difficulty.  The  uncertainty  exists  as  to 
cases  in  which  there  has  been  partial,  but  not  complete,  perform- 
ance. 

As  to  agreements  in  these  conditions,  there  are  three  different 
holdings : 

(1)  That  partial  execution,  if  it  has  gone  so  far  as  to  make 
it  impracticable  to  put  the  parties  in  substantially  the  same  con- 
dition as  they  were  before,  vitalizes  the  agreement,  or  estops  the 
party  in  whose  favor  performance  has  been  made  from  setting  up 
the  defect  in  the  agreement,  and  it  thus  becomes  practically  a 
contract  which  will  be  enforced  according  to  its  terms. 

(2)  That  partial  execution  will  estop  the  benefited  party  from 
setting  up  the  defect  in  the  agreement  until  he  puts  the  other 
person  in  statu  quo,  and  hence  will  validate  and  enforce  the  agree- 
ment, unless  he  gives  back  the  advantage  received,  or  in  good 
faith  offers  to  do  so,  in  which  case  he  would  be  discharged. 

(3)  That  equity  will  require  the  benefited  party  to  put  the 
other  in  statu  quo,  and,  while  it  will  not  enforce  the  agreement 
according  to  its  terms,  it  will  compel  restitution,  or  repayment, 
ot  such  other  action  as  may  be  just  and  right  in  the  premises. 

As  to  torts. — As  torts  are  always  unlawful,  it  follows  that,  in 
a  strict  sense,  all  torts  by  corporations  are  unauthorized.  It  does 
not  follow,  however,  that  a  corporation  has  no  actual  power  to 


SPECIAL   RELATIONS   AFFECTING  LEGAL   RIGHTS.  333 

commit  a  tort.  On  the  other  hand,  it  is  daily  demonstrated  that 
they  have  such  power,  and  are  constantly  exercising  it.  It  is 
this  actual  power  and  practical  condition  to  which  the  law  looks, 
and  for  the  wrongful  acts  done  or  omissions  suffered  a  corporation 
must  make  compensation.  Just  as  in  case  of  a  natural  person  a 
tort  by  him  is  always  unauthorized  by  law,  yet,  in  fact,  he  does 
the  wrong  and  his  lack  of  lawful  authority  does  not  shield  him. 
It  is  practically  settled,  in  both  the  Federal  and  State  Law,  that 
a  corporation  is  responsible  for  torts  of  its  agents  and  representa- 
tives in  the  same  manner  and  to  the  same  extent  that  a  natural 
person  is  responsible  for  the  torts  of  his  agents  and  represen- 
tatives. 


CHAPTER  XVII. 

SOME  SPECIAL  RELATIONS  AFFECTING  LEGAL  BIGHTS  AND  DUTIES 

(CONTD.) 

RELATIONS  BASED  ON   CO-OPERATION  AND   COMMUNITY   OF   INTEREST 

(  CONTD.) 

CORPORATIONS  ( CONTD.) 

Charter. — The  charter  of  a  private  corporation  created  by  spe- 
cial act  of  the  Legislature  consists  of  this  act  read  in  the  light  of 
all  applicable  constitutional  provisions.  The  charter  of  a  cor- 
poration created  under  a  general  enabling  act  consists  of  the 
articles  of  incorporation  filed  under  the  terms  of  such  act.  taken 
in  connection  with  the  enabling  act,  and  all  other  applicable  stat- 
utory and  constitutional  provisions. 

In  cases  of  corporations  created  by  special  act  there  can  be  but 
little  difficulty  in  ascertaining  what  instrument  constitutes  the 
charter.  It  is  the  special  act  passed  by  the  Legislature  and  ac- 
cepted by  the  incorporators.  Serious  questions  may  arise  as  to 
the  validity  or  proper  interpretation  of  this  act  in  whole  or  in 
part,  but  that  the  special  act,  so  far  as  it  is  constitutional  and 
valid,  when  properly  construed,  is  the  charter,  does  not  admit  of 
doubt. 

Difficulty,  however,  is  sometimes  found  in  ascertaining  what  is 
the  charter  of  the  company  organized  under  a  general  enabling 
act.  All  such  acts  require  the  execution  and  filing  in  some  public 
office  of  a  written  statement  as  to  the  name  and  purpose  of  the 
corporation,  its  location,  amount  and  shares  of  stock,  if  it  be  a 
stock  company,  the  length  of  time  the  corporation  is  to  exist,  the 
names  of  those  who  are  to  be  its  first  officers,  and  the  names  of 
some  of  those  who  are  its  stockholders.  This  instrument  is  rarely, 
if  ever,  required  to  contain  any  statements  as  to  the  method  of 
corporate  organization  or  action,  or  as  to  the  powers  of  the  cor- 
poration.    Sometimes  this  instrument  is  called  a  charter  in  the 


SPECIAL  RELATIONS  AFFECTING  LEGAL  BIGHTS,  335 

enabling  act,  though  more  frequently  it  is  designated  as  articles 
of  incorporation. 

It  is  perfectly  clear  that  if  the  powers  of  the  corporation  and 
its  manner  of  action  are  to  be  derived  from  its  charter,  that  if 
the  written  instrument  above  referred  to  is  the  charter  of 
a  corporation  created  under  an  enabling  act,  the  corporation 
so  created  would  be  a  failure.  Unless  the  corporation  has  pow- 
ers beyond  those  to  be  ascertained  from  this  written  instru- 
ment considered  by  itself,  it  can  do  nothing  effective  in  the  busi- 
ness world.  So  the  law  holds  that  the  charter  is  the  written  in- 
strument and  so  much  of  the  enabling  act  as  is  applicable  to  cor- 
porations created  under  it  for  the  purposes  and  of  the  kind  men- 
tioned in  the  written  instrument,  read,  of  course,  in  the  light  of 
all  applicable  constitutional  provisions. 

To  ascertain  what  is  really  the  charter  of  the  corporation 
created  under  a  general  enabling  act,  we  must  therefore  look : 

(1)  To  the  written  instrument  prepared  and  executed  by  the 
proposed  incorporators  and  ascertain  the  nature  and  purposes  of 
the  corporation  sought  to  be  created. 

(2)  Next  we  must  ascertain  whether  or  not  the  general  enabling 
act  authorizes  the  creation  of  a  corporation  of  that  kind  and  for 
those  purposes. 

This  inquiry  is  absolutely  essential.  No  corporation  can  be 
created  by  the  act  of  private  individuals  alone.  The  State's 
assent  to  and  co-operation  in  the  creation  of  the  corporation  is 
imperative.  This  action  on  the  part  of  the  State  as  to  the  kinds 
of  corporations  specified  in  the  general  enabling  act  and  the  pur- 
poses for  which  corporations  may  be  formed,  is  evidenced  by  the 
passage  of  that  act  and  is  limited  thereby.  For  individuals  to 
undertake  to  form  a  corporation  of  some  other  kind  or  for  other 
purposes  than  those  provided  for  in  the  enabling  act,  would  be 
for  them  to  create  a  corporation  without  the  concurrence  of  the 
State.  So-called  articles  of  incorporation  or  charters,  filed  by 
individuals  but  not  contemplated  by  the  enabling  act  under  which 
such  action  is  claimed  to  be  taken,  are  necessarily  inoperative  as 
efforts  to  create  a  corporation.  Such  an  instrument,  under  some 
conditions,  might  be  regarded  as  an  agreement  between  the  parties 
out  of  which  legal  rights  and  duties  might  grow,  but  it  could  not 
be  the  basis  of  corporate  life. 


336  AMERICAN   ELEMENTARY   LAW. 

If,  however,  the  corporation  and  purposes  indicated  by  this 
written  instrument  are  within  the  provisions  of  the  enabling  act, 
the  corporation  will  be  created  by  the  filing  of  the  instrument  in 
accordance  with  law. 

As  this  corporation  is  created  under  the  enabling  act  it  de- 
rives its  powers  therefrom  and  so  much  of  the  enabling  act  as  is 
valid  and  applicable  to  that  particular  corporation  created  for 
the  specified  purposes,  taken  in  connection  with  the  written  in- 
strument filed  by  the  incorporators,  is  the  charter  of  the  cor- 
poration. 

Cliarter  as  a  Contract. — For  years  it  has  been  the  settled  doc- 
trine of  the  American  courts  that  the  charter  of  a  corporation, 
whether  the  company  be  created  by  special  law  or  general  enabling 
act,  is  a  contract.  Properly  understood  and  limited,  this  doctrine 
is  unquestionably  true.  However,  it  is  easily  susceptible  of  un- 
true and  improper  application  and  interpretation. 

The  charter  of  a  corporation  is  a  true  and  genuine  contract, 
having  all  the  required  elements  of  an  enforceable  agreement: 

(1)  As  between  the  State,  on  the  one  hand,  and  the  aggregate 
or  combined  body  of  incorporators,  on  the  other ;  and, 

(2)  As  between  each  individual  incorporator  and  the  combined 
body  of  incorporators. 

The  corporation  regarded  as  a  legal  entity  cannot,  in  the  nature 
of  things,  be  a  party  to  the  contract  which  brings  it  into  existence. 
As  to  it,  the  charter  is  its  law  of  being,  absolutely  and  impera- 
tively binding  upon  it,  not  because  it  was  in  existence  and  gave 
its  consent  to  the  charter  when  it  was  formed,  but  because  the 
charter  brought  it  into  life  and  gives  to  it  all  of  its  capacities  and 
powers. 

It  might  be  said  that,  though  the  corporation  was  not  in  exist- 
ence when  the  agreement,  evidenced  by  the  charter,  was  formed, 
after  the  corporation  came  into  being,  it  adopts  or  ratifies  the 
charter.  The  objection  to  this  view  is  that  it  is  not  possible  in 
law  nor  true  in  fact.  A  corporation,  non-existent  at  the  time 
the  contract  was  made,  cannot  ratify  such  contract  under  the 
settled  rules  of  law.  Again,  both  ratification  and  adoption  are 
necessarily  based  on  voluntary  action  and  agreement  can  neither 
be  ratified  nor  adopted  by  a  person,  natural  or  artificial,  who 
is  not  free  to  reject  it.    No  one  would  contend  that  a  corporation 


SPECIAL   RELATIONS  AFFECTING  LEGAL   RIGHTS.  337 

is  legally  free  to  reject  and  repudiate  its  charter.  Beside  this, 
no  corporation  in  fact  goes  through  any  such  process  as  ratifica- 
tion or  adoption  of  its  charter  in  order  to  make  its  provisions 
binding  upon  it.  The  corporation  regarded  as  a  legal  entity 
therefore,  cannot  truly  be  said  to  be  bound  by  its  charter  by  reason 
of  agreement  on  its  part.  The  agreement  is  between  the  State 
and  the  body  of  incorporators,  and  each  of  these  parties  is  bound 
by  it  as  such.  The  legal  entity  results  from  this  agreement  and 
is  bound  by  it,  not  on  account  of  its  assent  thereto,  but  because 
it  derives  its  life  therefrom  and  has  only  such  life,  and  is  legally 
capable  of  only  such  action,  as  is  authorized  thereby. 

Returning  to  the  question  of  the  charter  as  a  contract  between 
the  State  and  the  body  of  incorporators,  or  a  corporation,  using 
this  term  to  indicate  the  body  of  incorporators  and  not  the  legal 
entity,  we  find  that  it  has  all  the  essentials  of  an  enforceable 
agreement. 

(1)  There  are  legally  competent  parties.  The  State  is  every- 
where recognized  as  capable  of  entering  into  any  agreements  not 
forbidden  by  the  Constitution  of  the  United  States  nor  of  the 
particular  State,  nor  by  those  fundamental  moral  principles 
which  protect  the  health,  safety,  and  morals  of  the  people. 

The  law  ordinarily  regards  all  persons  capable  of  entering  into 
ordinary  agreements  as  competent  to  become  members  of  cor- 
porations. In  some  instances  competency  for  this  purpose  is 
limited.  For  instance,  it  is  sometimes  provided  that  a  portion 
of  the  incorporators  must  be  residents  of  the  State  granting  the 
charter.  In  other  cases,  it  is  enlarged,  as  by  statutes  authorizing 
married  women  to  act  as  original  incorporators.  In  every  case, 
those  proposing  to  join  in  the  creation  of  the  corporation  must 
be  competent  under  the  law  authorizing  it. 

The  consideration,  as  between  the  State  and  the  body  of  in- 
corporators, is  readily  apparent.  It  consists  in  the  mutual  prom- 
ises of  the  parties  and  in  the  benefit  that  each  is  to  derive  from 
the  co-operation  of  the  other  in  forming  the  corporation  and  from 
the  carrying  out  of  the  corporate  business. 

The  corporate  enterprise  and  the  purpose  for  which  the  cor- 
poration is  created  must  be  expressly  authorized  by  law,  so  that 
in  this  sense  we  must  have  legality  of  purpose.  The  purpose 
must  also  be  legal  in  a  deeper  and  broader  sense.    The  State  can- 

22 


338  AMERICAN   ELEMENTARY   LAW. 

Dot,  by  agreement  with  individuals,  bind  itself  to  part  with  or 
abandon  the  exercise  of  its  sovereign  prerogatives  and  hence 
cannot,  by  a  charter,  cut  itself  off  from  the  proper  exercise  of 
its  police  power. 

This  doctrine  is  well  illustrated  in  the  case  of  Stone  v.  Mis- 
sissippi, 101  U.  S.  814.  In  that  ease  the  Legislature  of  Missis- 
sippi had  granted  a  charter  to  a  lottery  company.  The  company 
organized  and  paid  the  State  a  considerable  sum  of  money  for 
the  charter  and  for  the  privilege  of  doing  business  in  the  State. 
A  later  Legislature  passed  an  act  repealing  the  charter.  The 
company  refused  to  recognize  the  validity  of  this  act,  claiming 
that  the  charter  was  a  contract  and  its  validity  could  not  be  im- 
paired by  State  legislation.  The  Supreme  Court  of  the  United 
States  held  that  the  clause  in  the  Federal  Constitution,  taking 
from  the  States  the  power  to  impair  the  obligation  of  contracts, 
was  controlling  upon  the  legislative  action  of  a  State  but  as  the 
maintainance  of  a  lottery  is  immoral  and  against  public  policy  the 
charter  of  the  company  had  never  been  a  valid  contract  and  the 
constitutional  doctrine  was  not  applicable. 

Charters  must  be  evidenced  in  the  manner  and  form  provided 
by  law,  so  in  this  respect,  they  comply  with  the  requirements  of 
the  law  as  to  contracts. 

Charters  are  also  contracts  between  the  body  of  incorporators 
and  each  individual  incorporator.  The  discussion  as  to  parties, 
consideration,  legality  of  purpose,  and  form,  contained  in  the 
preceding  paragraph,  is  equally  applicable  here. 

These  four  essentials  of  contract  cannot  be  discovered  or  traced 
if  we  undertake  to  regard  the  charter  as  evidencing  any  contract 
except  the  two  above  indicated. 

We  have  heretofore  endeavored  to  show  that  a  corporation 
regarded  as  a  legal  entity  brought  into  being  by  its  charter,  can- 
not be  contractual  party  thereto. 

It  is  because  the  charter  is  a  contract  between  the  State  and 
the  body  of  incorporators  as  such,  that  the  State  is  legally  au- 
thorized and  justified  in  holding  these  incorporators  and  their 
successors  in  right  bound  by  the  terms  of  the  charter,  and  in  en- 
forcing appropriate  penalties  against  them  for  violation  of  its 
terms. 

It  is  because  the  charter  is  a  contract  between  each  individual 


SPECIAL  RELATIONS  AFFECTING  LEGAL  EIGHTS.  339 

stockholder  and  the  corporate  body,  that  any  stockholder,  how- 
ever small  his  share,  may  prevent  the  misuse  and  diversion  of 
corporate  funds  and  willful  corporate  mismanagement. 

It  is  because  the.^charter  is  a  contract  as  between  both  sets  of 
parties  above  mentioned  that  it  comes  within  the  protection  of  the 
guarantee  in  the  Federal  Constitution  against  State  legislation 
impairing  the  obligation  of  contracts,  and  that  the  States  are 
forbidden  to  alter  or  repeal  charters  once  validly  and  unreservedly 
assented  to.  This  is  the  fundamental  doctrine  of  the  great  Dart- 
mouth. College  Case. 

In  recognition  of  this  fact  and  of  the  further  fact  that  it  is 
often  desirable  for  the  State  to  have  practically  full  control  over 
corporations  created  by  it,  it  is  now  customary  to  incorporate 
either  in  the  State  Constitution  or  in  the  statutes  authorizing  the 
creation  of  corporations  the  reservation  of  the  right  to  repeal  or 
amend  charters.  Such  provisions  are  regarded  as  parts  of  and 
affecting  all  charters  granted  after  their  adoption.  Under  such 
conditions,  the  State  has  a  right  to  repeal  charters  granted  by  it. 
It  must,  however,  make  proper  and  fair  provision  for  winding 
up  the  affairs  of  the  company  and  protecting  the  legal  rights  of 
all  parties  concerned.  The  reserved  power  to  amend  may  also  be 
exercised.  Amendments  of  little  consequence  made  under  this 
reserve  power  are  binding  on  the  incorporators  and  the  corpora- 
tion. If,  however,  the  amendment  makes  a  material  change  in 
the  purposes  or  management  or  operations  of  the  corporate  en- 
terprise, it  is  not  operative  without  the  assent  of  all  the  incor- 
porators. If  the  amendment  is  not  accepted  by  the  incorporators, 
the  company  must  wind  up  its  affairs.  It  cannot  continue  to 
operate  under  the  old  charter  because  the  State,  one  of  the  parties 
to  the  agreement  evidenced  by  that,  has,  under  legally  reserved 
power,  withdrawn  its  assent,  and  it  is  no  longer  a  contract.  It 
cannot  operate  under  the  charter  as  amended  because  the  incor- 
porators have  rejected  that  and  it  is  not  an  agreement.  The  in- 
corporators are,  therefore,  allowed  a  reasonable  time  within 
which  to  accept  the  amendment,  and  if  they  do  not  do  this,  the 
corporation  is  dissolved  and  its  affairs  must  be  wound  up. 

Charter  as  the  Lata  of  Being  to  the  Corporate  Entity. — "While 
it  is  true  that  the  charter  of  a  corporation  is  not  an  agreement 
between  the  legal  entity  resulting  therefrom  and  any  other  person 


340  AMERICAN  ELEMENTARY  LAW. 

or  persons,  still  it  is  absolutely  binding  upon  this  legal  entity  and 
must  be  obeyed  in  every  respect  by  it.  This  obligation  is  deeper 
seated  and  more  imperative  than  if  voluntarily  assumed.  It  is 
a  fundamental  law  of  life.  From  the  charter  the  entity  de- 
rives all  its  powers.  It  has  no  life  except  as  conferred  by  it.  No 
power  of  action  except  in  conformity  with  it.  Deviation  from  it 
in  any  respect  must  be  unauthorized  and  unlawful.  The  result  of 
the  deviation  depends  upon  its  nature  and  extent.  If  the  sin  is 
small,  the  penalty  is  proportionately  small;  if  the  sin  is  great, 
the  penalty  is  proportionately  great;  if  the  sin  is  sufficiently 
grievous,  the  penalty  is  death,  usually  designated  forfeiture  of 
charter. 

Capital  Stock. 

Capital  stock  is  the  aggregate  amount  of  money  which  the 
charter  of  a  corporation  provides  is  to  be  put  into  the  corporate 
enterprise.  This,  as  all  other  matters,  is  of  concern  both  to  the 
State  and  to  the  incorporators  and  is  fixed  by  the  terms  of  the 
charter  and  can  neither  be  increased  nor  diminished  except  by 
agreement  of  both  parties. 

At  Common  Law,  and  in  many  of  the  States,  the  full  amount  of 
stock  mentioned  in  the  charter  must  be  taken  by  valid  subscrip- 
tion before  the  corporation  can  be  organized  and  begin  business. 
In  some  of  the  States  there  is  special  authority  for  organizing 
the  company  and  putting  it  into  actual  operation  when  only  a 
designated  portion  of  the  stock  has  been  subscribed  for.  This 
gives  rise  to  the  necessity  for  distinguishing  between  the  amount 
of  capital  stock  which  may  be  issued,  and  that  which  has  in  fact 
been  issued.  The  first  is  called  the  authorized  stock  of  the  corpor- 
ation, and  the  second,  its  actual  stock. 

The  instances  are  very  rare  indeed  in  which  one  person  would 
desire  and  be  able  to  pay  for  all  the  stock  in  the  corporation.  So 
to  facilitate  the  disposition  of  stock  and  to  distribute  the  benefits 
of  the  corporation  and  enlarge  the  number  of  the  persons  inter- 
ested in  it,  this  capital  stock  is  divided  into  proportionate  parts, 
and  offered  for  subscription  in  amounts  less  than  the  total  of  the 
authorized  stock. 

These  proportionate  parts  of  the  capital  stock  offered  as  sep- 
arate investments  are  called  shares  and  anyone  who  acquires  a 


SPECIAL   RELATIONS  AFFECTING  LEGAL   EIGHTS.  341 

share  becomes  a  shareholder,  or  stockholder,  or  member  of  the 
corporation. 

Shares  are  ordinarily  acquired  by  subscription  and  as  the  gen- 
eral rule  is  that  all  shares  must  be  taken  before  the  organization 
of  the  company  subscriptions  are  generally  made  before  the  filing 
of  the  charter.  As  the  company  is  not  then  in  existence  it  can- 
not be  a  party  to  the  contract.  Many  nice  questions  have  a.  isen 
as  to  the  manner  in  which  subscriptions  may  be  taken  before  the 
charter  is  granted  and  as  to  the  validity  of  these  agreements 
among  the  several  subscribers.  Most  of  these  questions  are,  how- 
ever, eliminated  by  statutes  in  the  several  States  regulating  the 
matter. 

In  those  States  in  which  the  corporations  may  be  organized  be- 
fore all  the  stock  is  taken,  the  stock  which  is  taken  before  organ- 
ization is  acquired  by  subscription  under  the  local  regulations 
as  in  other  eases.  The  stock  which  has  not  been  subscribed  when 
the  company  is  organized  is  a  potential  asset  in  its  hands  which 
may  be  disposed  of  by  it  by  subscriptions  to  which  it  is  a  party. 

A  subscription  in  this  connection  is  a  promise  to  take  a  desig- 
nated amount  of  the  stock  of  the  corporation  and  pay  for  it  a  des- 
ignated portion  of  its  face  value  upon  the  organization  of  the 
company  if  it  has  not  been  organized,  or  on  some  day  agreed  upon, 
if  the  company  is  then  in  existence,  and  to  pay  the  balance  of  the 
face  value  of  the  stock  at  such  times  and  in  such  manner  as  shall 
be  called  for  by  the  proper  corporate  authorities.  It  is  an  im- 
plied term  in  every  subscription  unless  it  be  expressly  stated 
therein  that  the  subscriber  will  pay  the  full  face  value  of  the 
stock  and  the  amount  in  cash  demanded  of  him  shall  be  the  same 
in  proportion  to  his  stock  as  that  demanded  from  every  other  sub- 
scriber, and  that  future  payments  shall  be  required  from  all  share- 
holders at  the  same  times  on  the  same  terms  and  in  amounts  pro- 
portionate to  the  shares  held  by  each  subscriber.  All  subscrip- 
tions for  stock  in  the  same  corporation  may,  therefore,  be  said  to 
be  related  and  mutually  dependent  contracts  entitling  all  share- 
holders to  the  same  rights  in  proportion  to  their  shares  and  sub- 
jecting them  to  the  same  burdens  in  the  same  proportion. 

In  rare  instances,  stock  may  be  acquired  from  a  corporation 
after  its  organization  by  purchase.    Purchase  here  has  the  same 


342  AMERICAN   ELEMENTARY   LAW. 

significance  that  it  ordinarily  has  and  means  the  acquisition  of 
a  share  from  the  company  by  sale  upon  terms  agreed  upon.  If 
the  purchase  is  cash  and  the  full  face  value  of  the  share  or  over, 
it  seems  that  neither  previous  shareholder  nor  creditors'  of  the 
company  could  complain.  If,  however,  the  purchase  is  for  less 
than  the  face  value,  or  on  credit  to  be  paid  for  at  times  designated 
in  agreed  amounts,  the  transaction  does,  under  the  ordinary  cir- 
cumstances, injure  both  the  existing  shareholder  and  the  credi- 
tors of  the  concern.  Under  ordinary  conditions,  the  corporation 
is  not  recognized  as  having  the  power  to  make  such  sales.  If  such 
sales  are  sustained  at  all  it  is  when  the  company  is  in  such  condi- 
tion that  its  stock  can  be  bought  on  the  market  for  less  than  its 
face  value  and  not  exceeding  the  amount  paid  or  promised  to  be 
paid  for  the  stock.  Under  such  circumstances  it  is  sometimes  to 
the  substantial  interests  of  the  company,  and  hence  of  its  share- 
holders and  creditors,  to  permit  it  to  make  sales  of  this  sort  and 
so  obtain  money  to  put  into  the  business. 

Shares  of  stock  after  they  have  been  acquired  from  the  com- 
pany are  transferable,  all  the  rights  and  liabilities  incident  to  the 
share  passing  with  its  transfer.  The  transfer,  however,  does  not 
carry  with  it  rights  to  dividend  which  have  been  declared  pre- 
vious to  the  transfer,  nor  subjection  to  calls  for  unpaid  purchase 
money  on  the  share  which  have  been  made  prior  to  the  transfer 
unless  the  corporation  has  a  lien  upon  the  share  for  such  pay- 
ment or  the  right  to  forfeit  the  share  for  non-payment. 

Membership. 

A  member  of  a  stock  corporation  is  one  of  the  persons  who  com- 
pose the  corporate  body ;  that  is,  a  person  who,  with  his  associates, 
was  an  original  party  to  the  contract  with  the  State  from  which 
the  corporation  resulted ;  or  one  who,  in  conformity  with  that  con- 
tract, has  been  let  in  as  an  additional  co-contractor  on  the  side  of 
the  individuals  acting  in  its  formation,  by  subscription  after  or- 
ganization ;  or  one  who,  in  conformity  with  that  contract,  has  suc- 
ceeded to  the  rights  and  responsibilities  of  such  a  former  member ; 
or,  in  rare  instances,  one  who  has  been  let  in  the  contract  on  the 
side  of  the  individuals  by  purchase  of  stock  from  the  corporation 
after  organization. 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       343 

In  all  stock  companies  membership  is  incident  to  ownership  of 
stock.     As  indicated,  membership  may  be  acquired  in  four  ways: 

(1)  By  subscribing  for  stock  before  organization  and  being 
one  of  the  charter  members. 

(2)  By  subscribing  for  stock  after  organization 

(3)  By  purchase  or  acquisition  of  stock  from  some  holder  after 
he  has  acquired  same  from  the  company. 

(4)  In  rare  cases,  by  purchase  of  stock  from  the  company  after 
incorporation. 

Shares  of  stock  are  transferable,  and  the  effect  of  sale  is  to 
change  the  membership  dependent  on  the  sold  share  from  the 
seller  to  the  buyer  and  to  relieve  the  seller  from  liability  for 
future  calls,  and  to  entitle  the  buyer  to  all  dividends  thereafter 
declared. 

Rights  Incident  to  Membership. — Membership  ordinarily  car- 
ries with  it  the  following  rights  and  liabilities;  if  in  any  case 
there  is  a  departure  from  these  it  is  exceptional,  and  the  excep- 
tion must  be  shown: 

(1)  Eight  to  participate  in  the  government  of  the  corporation 
and  its  affairs  by  taking  part  in  stockholders  meetings. 

(2)  Right  at  reasonable  times  and  for  proper  purposes  to  in- 
spect the  books  and  records  of  the  concern. 

(3)  Right  to  share  in  dividends. 

A  dividend  is  a  percentage  of  the  profits  of  the  corporate  busi- 
ness which  by  action  of  the  proper  authorities  has  been  withdrawn 
from  the  corporate  fund  and  distributed  for  the  benefit  of  the 
members  in  proportion  to  their  shares  of  stock. 

After  a  dividend  is  declared  and  before  it  has  been  paid  it  is  a 
debt  due  by  the  corporation  to  the  shareholder. 

(4)  Right  to  preference  in  subscription  for  increased  stock  in 
proportion  to  his  present  holding. 

(5)  Right  to  share  in  the  distribution  of  the  assets  upon  disso- 
lution of  the  concern. 

(6)  In  extreme  cases  the  right  to  control  the  conduct  of  the 
corporation  and  its  officers  in  carrying  out  the  corporate  business. 

As  membership  is  dependent  upon  ownership  of  shares  of  stock, 
those  rights  and  liabilities  which  are  in  their  nature  apportion able 
exist  in  proportion  to  the  shares  held  by  the  party.  Thus,  at  a 
stockholders  meeting  the  votes  arc  taken  per  share,  and  no1  per 


344  AMERICAN   ELEMENTARY   LAW. 

member,  assessments  are  made  and  dividends  paid  on  the  same 
basis. 

A  dividend  is  a  percentage  of  the  profits  of  the  corporate  en- 
terprise withdrawn  from  the  business,  and  distributed  among  the 
members  in  proportion  to  their  shares  of  stock. 

Liabilities  Incident  to  Membership. — The  first  liability  is  to  pay 
to  the  corporation,  or  its  representatives,  the  amount  of  subscrip- 
tion to  stock,  upon  proper  assessment  and  call. 

An  assessment  is  the  fixing  of  the  amount  of  money  needed  by 
the  corporation  for  a  given  purpose  or  purposes,  and  distributing 
the  amount  among  the  several  shareholders  in  proportion  to  their 
respective  shares,  thus  fixing  the  sum  or  per  ^ent  per  share  that 
each  stockholder  is  to  pay. 

A  call  is  a  demand  made  upon  a  stockholder  for  his  share  of  an 
assessment. 

The  corporation,  while  a  going  concern,  has,  at  Common  Law, 
the  right  to  sue  for  the  amount  of  any  assessment  upon  failure 
by  stockholders  to  pay,  after  notice.  There  are  two  common  stat- 
utory remedies :  forfeiture  of  the  stock,  and  sale  of  the  stock  with- 
out suit. 

In  case  of  insolvency,  absolute,  or  in  some  instances  going  no 
further  than  present  inability  to  command  cash  with  which  to 
make  immediate  payment,  the  creditors  of  the  company  may  pro- 
ceed against  the  stockholders  and  collect  the  amount  unpaid  on 
their  respective  subscriptions,  provided  this  does  not  exceed  the 
amount  of  the  debt. 

Internal  Government, 

Business  management  is  vested  in,  or  divided  between,  the 
stockholders  and  board  of  directors.  Ordinarily  the  stockholders 
determine  the  general  policy  of  the  business  and  elect  the  board 
of  directors,  make  by-laws  for  their  government,  and  leave  to  the 
directors  and  officers  elected  by  them  the  actual  management  of 
the  concern. 

The  directors  are  the  managing  body  of  the  corporation,  and  for 
it  and  in  its  name  carry  on  its  business.  They  elect  its  officers, 
usually  from  among  themselves,  and  define  their  duties,  when  not 
prescribed  in  the  by-laws,  and  overlook  their  affairs.     The  general 


SPECIAL   RELATIONS   AFFECTING  LEGAL   BIGHTS.  345 

officers  usually  select  and  employ  their  respective  subordinates  in 
their  several  departments. 

Corporate  Funds. 

The  assets  or  funds  of  a  stock  corporation  consist,  at  first,  of  its 
capital  stock,  and,  subsequently,  of  all  property  and  valuable  fran- 
chises acquired  by  it  in  the  prosecution  of  its  business,  either  by 
realizing  on  its  corporate  stock  or  capital,  or  by  profits  in  its  busi- 
ness, or  otherwise.  The  property  acquired  in  any  of  these  ways 
may  be  utilized  in  the  prosecution  of  the  business,  and  in  this  there 
may  be  many  purchases  and  sales,  and  purchases  again,  but 
through  all  these  mutations  in  the  things  owned,  so  long  as  the 
ownership  is  in  the  corporation,  the  things  constitute  corporate 
assets  or  funds,  and  are  to  be  dealt  with  as  such. 

This  brings  us  to  the  mooted  question  whether  or  not  the  assets 
of  a  corporation  are  a  trust  fund.  There  is  a  great  deal  now  being 
said  in  the  decisions  of  courts  and  the  magazine  articles  on  both 
sides  of  the  question.  The  question  seems  to  me  to  be  more  a 
matter  of  words  than  of  substantial  difference.  When  the  Su- 
preme Court  of  the  United  States  says  that  a  corporation  owns  its 
property  just  as  an  individual  or  natural  person  owns  his,  and 
some  State  supreme  court  says  that  the  assets  of  a  corporation  are 
a  trust  fund,  it  seems  that,  technically,  neither  is  correct,  but  that, 
substantially,  each  is  right  from  the  point  of  view  each  occupied 
at  the  time. 

That  a  corporation  owns  its  assets,  in  the  full  sense  of  the  term, 
just  as  an  individual  owns  his,  I  do  not  think  can  be  said.  The 
individual  has  right  of  possession,  without  accountability  to 
anyone  therefor.  He  has  the  right  to  use  it  as  he  sees  fit,  so  long 
as  he  does  not  interfere  with  the  just  rights  of  others  in  their  per- 
sons or  property  in  so  doing.  He  can  change  the  use  as  he  pleases. 
He  can  even  destroy  the  thing  without  incurring  legal  liability  to 
any  other  person.  These  incidents  of  ownership  do  not  equally 
exist  in  case  of  a  corporation.  It  can  not  use  the  property  in  its 
hands  except  for  the  furtherance  of  the  corporate  enterprise, 
and  has  no  right  to  destroy  it  except  as  such  destruction  may  oc- 
cur in  the  legitimate  use  of  the  property  in  the  furtherance  of  the 
corporate  business.  So,  I  think,  it  is  inaccurate  to  say  a  corpora- 
tion owns  its  property  just  as  an  individual  owns  his. 


346  AMERICAN   ELEMENTARY   LAW. 

But  it  is  certainly  correct  to  say  that  a  corporation  is  entitled 
to  equal  protection  of  the  law  in  the  use  and  enjoyment  of  its 
property  for  corporate  purposes,  and  that  its  rights  are  as  sacred 
before  the  law  and  must  be  enforced  with  the  same  conscientious 
regard  for  justice  and  law,  as  those  of  an  individual. 

On  the  other  hand,  the  corporation  certainly  has  power  over  its 
property  and  an  interest  in  it  beyond  those  of  an  ordinary  trustee. 
In  a  technical  sense,  there  is  no  strict  relation  of  trustee  and  cestui 
que  trust;  so  that  the  technical- rules  of  procedure  in  such  cases 
should  not  be  enforced.  Still  the  property  is  charged  with  the 
accomplishment  of  a  certain  purpose,  and  can  not  be  lawfully 
applied  to  any  other,  and  if  the  managing  officers  of  the  corpora- 
tion or  any  of  the  stockholders  or  any  number  of  them  shall  at- 
tempt to  use  it  for  other  and  different  purposes,  they  can  be  re- 
strained from  so  doing  if  the  wrongful  purpose  is  known  before 
its  accomplishment,  or  can  be  held  in  damages  if  the  wrong  has 
been  consummated.  This  is  certainly  not  true  as  to  an  individual 
having  general  ownership  of  a  thing.  The  trust  fund  theory, 
therefore,  has  much  of  truth  in  it. 

The  foregoing  observations  apply  while  the  corporation  is  still 
attempting  to  carry  on  the  corporate  business.  When  the  corpor- 
ate enterprise  is  abandoned  and  the  company  ceases  to  be  a  going 
concern,  the  trust  idea  becomes  of  much  greater  practical  im- 
portance. 

In'  those  States  holding  to  the  trust  fund  theory,  the  moment 
the  corporate  officers  abandon  the  effort  to  carry  out  the  corporate 
purpose,  their  power  over  the  assets  ceases,  except  as  trustees,  to 
use  them  in  paying  the  corporate  debts  and  turning  over  the  sur- 
plus, if  any,  to  the  stockholders.  This  trust  must  be  discharged 
fairly  and  without  favoritism  or  preference  between  the  creditors. 
So  in  these  States  no  preferential  assignments  can  be  made  by  a 
corporation  nor  can  any  preferences  be  obtained  in  the  distribu- 
tion of  the  assets  of  an  insolvent  corporation  by  attachment  or 
other  legal  proceedings. 

In  general,  we  may  say  that  creditors  of  a  corporation,  while  it 
is  a  going  concern,  have  the  same  rights  and  remedies  against  it 
that  the  creditors  of  a  natural  person  have.  This  applies  only  to 
private  corporations,  as  public  corporations  enjoy  privileges  in 
this  regard  not  pertaining  to  individuals.  In  case  of  quasi-public 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       347 

corporations  there  are  some  special  rules  and  doctrines  differing 
from  the  strictly  private,  but  we  have  not  time  to  take  up  these. 

Corporations  T)e  Facto, — General  enabling  acts  always,  and 
special  laws  providing  for  the  organization  of  corporations  fre- 
quently, require  that  individuals  organizing  the  corporation, 
under  the  authority  conferred,  shall  perform  certain  acts.  Ques- 
tions necessarily  have  arisen  as  to  the  extent  to  which  these  pro- 
visions must  be  complied  with  in  order  to  bring  the  corporation 
into  being. 

The  rules  on  this  subject  are  fairly  well  settled  and  may 
be  stated  as  follows : 

(1)  Literal  compliance  with  the  provisions  of  the  valid  law 
always  results  in  the  creation  of  a  lawful  corporation. 

(2)  Substantial  compliance  with  the  terms  of  the  corporate 
law  has  the  same  result. 

(3)  Effort  in  good  faith  to  comply  though  it  falls  a  little  short 
of  substantial  compliance,  and  actual  organization  and  entry 
upon  the  corporate  business,  does  not  result  in  a  corporation  in 
law,  but  does  result  in  an  organized  combination  of  the  individ- 
uals known  as  a  corporation  de  facto. 

(4)  Effort  at  performance  of  the  requirements,  even  though 
in  good  faith,  which  does  not  approximate  substantial  require- 
ment does  not  create  a  corporation  but  leaves  the  rights  and  lia- 
bilities of  the  parties  to  be  determined  by  other  rules  of  law. 

(5)  Effort  at  performance,  not  in  good  faith,  and  not  strictly 
in  conformity  with  the  statute  does  not  result  in  the  formation 
of  a  corporation  either  de  jure  or  de  facto. 

(6)  Attempts  to  form  corporations  when  there  is  no  valid  law 
authorizing  incorporation  for  the  purpose  or  purposes  named  is 
ineffective  and  does  not  result  either  in  a  corporation  de  jure  or 
de  facto.  This  is  true  whether  the  attempt  be  made  without  the 
semblance  of  statutory  authority  or  in  compliance  with  a  legis- 
lative enactment  which  is  unconstitutional. 

We  may  define  a  corporation  de  facto  as  an  organization  and 
combination  of  persons  resulting  from  a  bona  fide  attempt  on 
their  part  to  form  a  corporation  under  a  valid  law  in  which  they 
have  not  quite  come  up  to  substantial  compliance  but  under 
which  they  have  actually  organized  and  entered  upon  the  cor- 
porate business. 


348  AMERICAN   ELEMENTARY   LAW. 

Before  there  can  be  a  corporation  de  facto  there  must  be: 

First,  a  valid  law  under  which  organization  is  sought  to  be 
made. 

Second,  the  action  of  the  incorporators  must  fall  just  a  little 
short  of  compliance  with  this  law. 

Third,  just  what  this  requirement  means  it  is  difficult,  if  not 
impossible,  to  state  more  definitely.  If  the  effort  results  in  sub- 
stantial compliance,  a  de  jure  corporation  is  formed;  if  it  falls 
unreasonably  short  of  substantial  compliance,  no  kind  of  corpo- 
rate life  results.  The  space  between  these  two  statements  is 
vague  and  in  each  particular  ease  must  be  determined  by 
the  court  from  its  own  facts  in  the  exercise  of  a  sound  discretion. 

The  action  taken  by  the  incorporators  must  be  in  good  faith.  If 
there  is  any  fraud  or  attempt  at  evasion  of  the  law  a  corporation 
de  facto  will  not  exist. 

Fourth,  the  parties  must  in  fact  organize  what  they  believe  to 
be  a  corporation  and  this  corporation  must  actually  enter  upon 
the  corporate  business. 

So  far  as  private  persons  are  concerned  a  corporation  de  facto 
stands  in  law  upon  the  same  footing  as  a  corporation  de  jure. 
Its  rights  will  be  protected  and  its  duties  enforced  and  the  rights 
of  the  respective  members  among  themselves  will  be  just  the  same 
as  if  the  corporation  were  one  de  jure. 

When  the  relations  between  the  State  and  the  corporation  are 
considered  from  the  standpoint  of  the  State,  the  rule  is  quite 
different.  As  there  has  been  neither  literal  nor  substantial  com- 
pliance with  the  terms  of  the  law,  the  State  has  never  in  fact  as- 
sented to  the  formation  of  the  corporation  and  its  assent  as  as- 
sumed by  the  members  may  be  withdrawn  at  any  time  and  the 
charter  or  supposed  charter  declared  forfeited  and  the  business 
of  the  concern  wound  up.  In  doing  this  the  State  must  protect 
the  vested  rights  of  the  incorporators  and  creditors  of  the  con- 
cern. The  procedure  in  such  cases  is  usually  practically  the  same 
as  in  the  dissolution  of  a  corporation  de  jure  by  lapse  of  time  or 
for  other  reasons. 

Foreign  and  Domestic  Corporations. 

A  foreign  corporation  is  one  created  by  a  government  whose 
laws  are  not  enforced  at  the  place  at  which  the  status  of  the  cor- 
poration is  being  considered.    A  domestic  corporation  is  one  ere- 


SPECIAL  RELATIONS  AFFECTING  LEGAL  RIGHTS.       349 

ated  under  a  law  which  is  in  force  at  the  place  where  the  matter 
is  being  determined. 

Under  these  definitions,  a  corporation  created  under  the  laws 
of  any  foreign  government  or  of  any  State  in  the  Union  beside 
the  one  in  which  the  status  of  the  corporation  is  to  be  determined 
is  a  foreign  corporation.  Under  it  corporations  created  under  a 
valid  act  of  Congress  in  the  exercise  of  its  general  powers,  or  un- 
der the  law  of  the  State  in  which  the  question  is  pending  is  a 
domestic  corporation.  A  corporation  created  by  Congress  in  ex- 
ercising its  jurisdiction  in  the  District  of  Columbia  or  any  of  the 
territories,  is  a  foreign  corporation,  in  any  State  or  other  Terri- 
tory. 

Domestic  corporations  have  such  powers,  and  such  only,  as  are 
conferred  by  their  charters.  Foreign  corporations  considered 
strictly  as  such  have  such  powers,  and  such  only,  in  any  given 
State  as  are  accorded  to  them  under  the  rules  of  comity.  Strictly 
speaking,  a  foreign  corporation  is  not  legally  entitled  to  recogni- 
tion, existence,  or  the  right  to  do  business  in  any  State  outside  of 
that  of  its  creation.  In  that  it  does  business  not  as  a  foreign  but 
as  a  domestic  corporation. 

Corporations,  legally  speaking,  are  not  citizens  either  of  the 
State  in  which  they  are  created  or  of  the  State  in  which  all,  or  a 
majority,  of  their  stockholders  are  citizens.  Not  being  citizens, 
they  do  not  come  within  the  protection  of  that  clause  of  the  Fed- 
eral Constitution  which  guarantees  to  the  citizens  of  each  State 
equal  privileges  and  immunities  in  every  other  State  in  the 
Union  that  the  citizens  of  the  latter  enjoy.  This  clause,  therefore, 
does  not  interfere  with  the  State's  power  to  exclude  foreign  cor- 
porations from  its  territory,  or  from  doing  business  therein,  or 
from  imposing  such  conditions  upon  their  entry  within  its  terri- 
tory or  doing  business  as  the  State  shall  see  fit 

It  is  quite  customary  for  the  several  states  to  waive  their  right 
of  exclusion  and  under  the  law  of  comity  to  permit  foreign  cor- 
porations to  do  business  within  their  respective  territory.  In 
later  years  it  is,  however,  not  unusual  for  the  State  to  impose 
reasonable  conditions  upon  this  privilege.  These  conditions 
usually  consist  in  requiring  full  and  satisfactory  disclosure  of  the 
financial  status  and  solvency  of  the  concern,  the  payment  of  a 
State  tax  or  license  fee,  and  taking  out  h  permit  or  license.    Such 


350  AMERICAN    ELEMENTARY   LAW. 

restrictions  are  valid  unless  they  contravene  the  Inter-State 
Commerce  Clause  of  the  Federal  Constitution  or  attempt  to  de- 
prive the  corporation  of  its  right  to  litigate  its  legal  rights  in  the 
Federal  Courts. 

If  a  corporation  is  authorized  by  its  charter  to  engage  in  com- 
merce and  does  engage  in  commerce  in  such  way  and  under  such 
circumstances  that  a  particular  transaction  or  series  of  transac- 
tions is  really  Inter-State,  or  foreign  commerce,  such  act  or  busi- 
ness is  within  the  exclusive  regulation  of  Congress  and  the  States 
can  neither  forbid  nor  regulate  it. 

While  the  foregoing  statement  that  a  corporation  is  not  a  citi- 
zen of  the  State  creating  it  is  an  established  doctrine  of  the  Fed- 
eral Courts  that  for  the  purpose  of  determining  jurisdiction  in 
the  Federal  Courts,  when  this  is  dependent  upon  diverse  citizen- 
ship of  the  parties,  it  will  be  conclusively  presumed  that  all  of 
the  stockholders  of  the  corporation  at  the  date  of  the  institution 
of  the  suit  were  resident  citizens  of  the  State  in  which  the  charter 
was  granted,  and  the  question  of  jurisdiction  will  be  decided 
on  this  presumption  without  permitting  any  proof  to  the  con- 
trary. 


CHAPTER  XVIII. 


PROPERTY. 


One  of  the  most  important  and  complicated  subjects  with 
which  the  law  deals  is  property.  Anything  like  a  satisfactory 
treatment  of  it  would  cover  several  volumes.  It  is  too  important, 
however,  to  pass  over  without  a  very  brief  outline  or  treatment 
of  its  general  features. 

There  are  three  closely  related  ideas  involved  in  the  subject : 

(1)  The  legal  right  of  dominion  over  a  thing,  usually  called 
ownership. 

(2)  The  subject  matter  of  such  dominion,  or  the  thing  owned. 

(3)  The  legal  evidence  of  ownership,  or  title. 

While  these  three  ideas  are  closely  connected  they  are  easily 
separable  and  must  not  be  confused. 

OWNERSHIP. 
General  Conception. 

Ownership  involves  dominion  over  the  thing  owned ,  the  legal 
right  to  have  it,  to  use  it,  and  to  enjoy  it,  to  do  with  it  substan- 
tially as  one  sees  fit;  subject  only  to  the  general  rules  of  law 
which  prevent  one  from  so  using  his  own  as  to  unjustly  injure  his 
neighbor. 

The  word  property  is  from  the  same  root  as  the  word  appropri- 
ate, the  primary  meaning  of  which  is  to  take  to  one's  self;  to 
apply  to  one's  exclusive  benefit.  The  word  dominion,  which  is 
frequently  used  as  indicating  ownership,  signifies  control, 
authority  over,  power  to  do  with  according  to  one's  will.  Each 
of  these  ideas  is  embraced  in  the  law 's  meaning  of  the  word  own- 
ership. 

The  word  property  is  often  used  as  indicating  this  proprietor- 
ship in  and  dominion  over  the  thing,  but  more  frequently  it  is 
used  with  reference  to  the  thing  appropriated,  or  over  which  the 
dominion  may  be  lawfully  exercised.     On  account  of  this  dual 


352  AMERICAN   ELEMENTARY   LAW. 

use  of  the  word  property,  we  will  use  the  term  ownership  in  this 
immediate  connection. 

When  the  law  recognizes  the  propriety  of  the  appropriation  of 
a  particular  thing  by  a  particular  person  and  his  dominion  over 
the  thing,  and  undertakes  to  protect  him  therein  his  ownership  be- 
comes a  legal  right. 

This  right  to  acquire,  hold  and  enjoy  property  is  indispensable 
to  our  present  modes  of  life  and  its  accompanying  civilization. 
Without  some  recognition  of  proprietary  interest  in  and  domin- 
ion over  particular  things  by  particular  persons,  society  could 
not  be  maintained  on  anything  like  its  present  basis. 

This  conception  of  property  and  right  of  dominion  is  con- 
ducive not  only  to  the  individual  good,  but  to  the  general  well 
being  of  the  community.  It  has  always  been  conceded  that  these 
property  rights  are  not  absolute  and  unlimited.  When  the  law 
says  that  it  recognizes  the  dominion  of  a  certain  person  over  a 
certain  thing  and  will  protect  him  in  his  claims  thereto,  it  does 
not  mean  that  his  dominion  is  absolute  and  not  subject  to  recla- 
mation by  the  public,  nor  that  his  use  of  the  thing  according  to 
his  own  will  is  unlimited.  Because  A  has  the  undisputed  and 
unconditioned  ownership  of  a  gun  is  no  reason  that  the  law 
should  permit  him  to  murder  B  with  it;  nor  because  B  has  fee 
simple  title  to  a  tract  of  land  is  he  therefore  authorized  to  main- 
tain upon  it  anything  which  would  be  a  nuisance  to  his  neighbor. 
The  law  places  reasonable  limitations  upon  the  dominion  of  the 
owner  over  his  property  as  well  as  upon  the  uses  to  which  he  may 
apply  it  and  the  manner  of  such  uses. 

Elements  of  Ownership. 

Using  the  term  in  its  fullest  legal  sense,  ownership  embraces 
five  elements : 

(1)  The  right  of  possession. 

(2)  The  right  to  use. 

(3)  The  right  to  receive  profits  or  increment  from. 

(4)  The  right  to  change,  that  is,  to  modify  or  destroy. 

(5)  The  right  to  dispose  of. 

When  these  five  rights  are  combined  in  one  person  as  to  one 
thing,  without  limit  as  to  time,  this  is  the  highest  estate  which  the 
law  knows. 

Each  of  these  rights  in  the  owner  is  exclusive,  except,  of  course, 


PROPERTY.  353 

in  cases  in  which  there  are  a  number  of  co-owners  holding  the 
property  rights  in  combination.  The  Common  Law  recognizes 
several  combinations  of  interests.  These,  however,  are  prin- 
cipally important  as  to  estates  in  land,  and  can  be  more  appro- 
priately treated  in  connection  with  that  subject. 

Bight  of  Possession, — Possession  means  immediate,  physical 
dominion  over  a  thing.  The  word  is  used  with  reference  to  many 
different  kinds  of  things  over  many  of  which  the  physical  do- 
minion would,  from  the  respective  natures  of  the  things,  have  to 
be  exercised  in  different  ways.  If  a  man  has  his  purse  in  his 
hand,  we  say  it  is  in  his  possession ;  if  he  places  it  in  his  pocket, 
it  is  still  in  his  possesion ;  if  at  night  he  places  it  in  his  safe,  it  is 
still  in  his  possession.  We  say  that  he  who  occupies  a  house  is  in 
possession  of  it,  also  that  he  is  in  possession  of  the  yard  and  im- 
mediately adjacent  premises.  If  the  claim  of  right  under  which 
he  occupies  the  house  extends  to  a  thousand  acres  of  land  on 
which  the  house  is  situated,  we  say  that  he  is  in  possession  of  the 
whole  tract.  It  is  apparent  that  the  man  has  not  the  same  phys- 
ical contact  with,  and  power  over,  each  of  the  things  of  which  we 
have  affirmed  that  he  was  in  possession.  The  one  idea  common  to 
all  the  different  states  of  fact  is,  that  the  party  said  to  be  in  pos- 
session had  the  immediate  physical  dominion  over  the  thing  pos- 
sessed. 

The  law  stresses  this  idea  of  dominion  to  such  an  extent  that  it 
frequently  recognizes  a  thing  as  in  possession  of  a  person  when 
there  is  really  no  actual  physical  contact  between  it  or  any  part 
of  it  and  himself. 

Possession  is  called  actual  when  it  involves  actual  physical 
contact  and  control  exercised  over  the  thing. 

Possession  is  called  constructive  when  there  is  the  legal  right 
of  physical  dominion  and  control  over  the  thing  but  no  actual 
contact  or  physical  control  over  it  or  any  part  of  it. 

To  illustrate ;  if  A  is  the  legal  owner  of  a  tract  of  land  and  has 
it  all  enclosed  within  a  fence  and  lives  upon  it,  in  the  strictest 
sense  he  is  in  actual  possession  of  the  land.  If  he  owns  the  tract 
of  land  and  has  only  a  portion  of  it  enclosed  and  lives  upon  it,  he 
is  still,  in  legal  contemplation,  in  actual  possession  of  the  whole 
tract.  He  is  in  actual  physical  possession  of  a  portion  of  it  and 
in  order  to  sustain  his  legal  right  to  the  remainder  the  law  re- 
23 


354  AMERICAN  ELEMENTARY  LAW. 

gards  this  physical  dominion  over  the  part  as  extending  to  the 
whole. 

If  A  owns  a  tract  of  land  and  neither  he  nor  anyone  else  has 
actual  physical  control  over  any  part  of  it,  A  is,  in  legal  contem- 
plation, in  constructive  possession  of  the  whole.  He  is  legally 
entitled  to  such  possession  and  as  no  one  has  an  actual  physical 
occupancy  of  the  land,  his  legal  right  of  possession  draws  to  it- 
self by  construction  of  law  immediate  physical  dominion  over  the 
thing  owned. 

If  A  owns  a  tract  of  land,  but  is  not  in  possession  of  any  part 
of  it,  and  B  enters  upon  it,  encloses  it  all  under  fence  and  uses  it 
as  his  own,  the  law  would  recognize  this  as  actual  possession  by 
B.  It  is  not  legal  but  it  exists  in  fact,  and  so  existing  the  law 
takes  cognizance  of  it. 

If  A  owns  a  tract  of  land  and  B  enters  upon  and  takes  actual 
possession  of  only  a  portion  of  it,  such  actual  possession  will  des- 
troy A's  constructive  possession  of  the  part  actually  held  by  B, 
but  will  have  no  affect  upon  the  remainder.  This  last  statement 
must  be  taken  with  the  qualification  that  under  the  statutes  of 
some  of  the  States  actual  possession  of  a  part  of  a  tract  of  land 
will  draw  to  itself  constructive  possession  of  some  designated 
amount  of  the  balance  of  the  tract  for  the  purpose  of  supporting 
the  statute  of  limitation. 

If  there  are  conflicting  titles  to  a  tract  of  land,  so  long  as  it  is 
not  in  the  possession  of  either  of  the  claimants,  it  is  legally  in  the 
constructive  possession  of  the  true  owner.  If  either  claimant 
takes  actual  possession  of  any  part  of  it,  the  other  claimant  not 
being  in  possession,  this  will  be  regarded  as  actual  possession  of 
the  whole  tract  by  the  one  actually  occupying  the  part. 

If  there  are  two  claimants  and  each  is  in  actual  occupancy  of  a 
part  of  the  land,  the  true  owner  will  be  regarded  as  in  actual  pos- 
session of  all  not  actually  occupied  by  the  adverse  claimant  whose 
possession  will  be  limited  to  the  part  actually  enclosed  by  him. 

It  is  apparent  from  the  foregoing  that  the  actual  possession  of 
property  may  be  taken  wrongfully  and  hence  may  be  in  one  per- 
son when  the  legal  right  to  the  possession  is  in  another.  This  is 
always  a  legal  wrong  committed  by  the  one  taking  possession 
against  the  one  entitled  to  it.  Such  unlawful  possession  should 
always  be  surrendered  to  the  true  owner  upon  demand.    If  this  is 


PROPERTY.  355 

not  done,  the  owner  can  always  recover  the  possession  of  the 
property  unless  the  adverse  holding  has  extended  for  such  length 
of  time  and  under  such  circumstances  as  to  constitute  a  bar  under 
the  statutes  of  limitations. 

While  wrongful  actual  possession  is  never  good  against  the 
owner,  unless  it  has  ripened  into  a  defense  under  the  statutes  of 
limitations,  it  is  not  an  invasion  of  the  right  of  anyone  except  the 
owner  and  so  long  as  it  remains  undisturbed  by  the  true  owner  it 
may  be,  and  frequently  is,  looked  upon  as  sufficient  evidence  of 
right  in  the  thing  possessed  against  anyone  interfering  with  it 
except  the  true  owner. 

Right  to  Use. — Ownership  also  carries  with  it  the  right  to  use 
the  thing  owned.  The  right  to  use  is  the  right  to  apply  the  thing 
owned  to  benefit,  convenience,  or  pleasure  of  the  owner,  that  is, 
the  right  to  subserve  his  purposes  by  the  employment  of  the 
thing  owned.  This  right  extends  to  the  application  or  employ- 
ment of  the  thing  in  any  way  which  does  not  unduly  interfere 
with  the  just  rights  of  the  public  or  of  any  individual.  These 
limitations  are  real  and  must  constantly  be  kept  in  mind.  Own- 
ership does  not  carry  with  it  the  license  to  use  the  thing  owned  in 
any  way  that  the  owner  may  see  fit,  but  only  the  liberty  to  use  it 
with  due  regard  for  the  just  and  equal  rights  of  other  persons. 

The  Right  to  Receive  Profits  or  Increment  From. — The  next 
incident  of  ownership  is  the  right  to  receive  pecuniary  advantage 
from  the  profits  or  revenues  derivable  from  the  thing  owned  and 
the  increment  or  increased  value  thereof.  This  is  a  very  valua- 
ble right,  without  which  capital  would  practically  lose  its  pro- 
ductive quality.  These  benefits  include  such  items  as  rents,  or 
hire  of  property,  interest  on  money,  dividends  on  stock,  increased 
value  of  the  thing  which  is  owned,  the  natural  increase  of  ani- 
mals and  similar  accessions  of  value.  In  many  instances,  this 
profit  results  from  the  judicious  use  of  the  thing  owned  by  the 
owner.  In  many  others,  it  is  received  by  him  from  another  as 
compensation  for  the  privilege  of  using  the  thing  owned  by  the 
latter.  In  other  instances  it  represents,  or  takes  the  form  of 
an  increase  in  value  of  the  thing  owned;  and  in  still  others,  it 
comes  from  the  production  by  the  thing  owned  of  other  things 
having  value. 


356  AMERICAN   ELEMENTARY   LAW. 

The  Right  to  Change. — Another  of  the  rights  incident  to  own- 
ership is  the  right  to  change  the  thing  owned.  This  right  ex- 
tends from  the  slightest  modification  to  the  complete  destruction 
of  the  thing.  It  is  an  exceedingly  useful  aud  practical  right. 
Under  it  all  improvements  and  manufactures  are  carried  on.  If 
the  owner  of  property  were  required  by  law  to  keep  the  thing 
owned  always  in  the  same  condition,  life,  for  the  short  space 
during  which  it  could  be  maintained  at  all,  would  be  unendura- 
ble. Man  could  use  neither  food  nor  clothing,  nor  enjoy  nor  de- 
rive benefit  for  any  length  of  time  from  anything  which  he  had. 
In  the  reasonable  exercise  of  this  right,  many  of  the  largest  and 
most  frequent  opportunities  of  life  are  enjoyed. 

The  Bight  to  Dispose  of. — The  last  of  the  elements  of  owner- 
ship is  the  right  or  power  to  dispose  of  the  thing  owned.  This 
consists  in  the  legally  protected  privilege  of  transferring  one  or 
more  of  the  other  rights  of  ownership  to  another  person  in  such 
way  that  he  shall  thereby  acquire  such  legal  right.  This  is  an  in- 
dispensable right  and  one  very  frequently  and  freely  exercised. 
The  claim  or  advantage  transferred  may  be  any  of  the  four  pre- 
ceeding  rights  combined  without  any  limitation  thereon,  or  it 
may  be  some  one  or  more  of  these  rights  for  a  limited  time,  to  a 
limited  extent,  and  for  limited  purposes.  The  estate  created  by 
the  transfer  would  depend  upon  the  nature  and  purpose  of 
the  transfer  and  the  agreement  of  the  parties. 

Transfers  of  these  rights  may  be  effected  in  many  ways.  The 
most  frequent  methods  are  by  agreement  between  the  parties  and 
by  operation  of  law.  In  so  far  as  they  are  effected  by  agreement 
between  the  parties  they  are  governed  by  the  rules  of  law  appli- 
cable to  that  subject  including  the  law  of  contracts. 

Acquisition. 

Ownership  of  a  thing  may  be  acquired  in  a  number  of  different 
ways.  A  number  of  classifications  of  these  methods  have  been 
made  by  different  persons,  at  different  times. 

The  classification  accepted  by  Blackstone  as  coming  from  Lit- 
tleton gives  only  two  modes  of  acquisition  of  real  estate,  one  by 
purchase  and  the  other  by  descent.  As  to  things  personal,  he 
-mentions  twelve  methods,  1.  By  occupancy,  2.  By  prerogative, 
3.  By  forfeiture,  4.  By  custom,  5.  By  succession,  6.  By  marriage, 


PROPERTY.  357 

i 

7.  By  judgment,  8.  By  gift  or  grant,  9.  By  contract,  10.  By  bank- 
ruptcy, 11.  By  testament,  and  12.  By  administration. 

It  is  apparent  that  this  classification  is  too  ancient  and  involves 
and  is  based  upon  legal  rules  and  conditions  many  of  which  are 
now  obsolete.  A  treatise  which  undertook  to  trace  out  the  his- 
torical development  of  the  law  might  well  afford  to  give  time  and 
attention  to  it,  but  if  the  effort  is  to  bring  into  the  mind  of  the 
student  a  simple  understanding  of  the  living  law  as  it  now  exists 
in  American  jurisprudence  upon  a  simple  effective  working  basis 
it  is  highly  probable  that  an  effort  at  elaborating  them  would  re- 
sult more  in  confusion  than  helpfulness.  I  do  not  wish  to  be  mis- 
understood here.  The  historical  approach  to  the  law,  searching 
out  what  has  been,  is  essential  in  the  process  of  legal  education. 
This  necessarily  comes  as  a  part  of  the  treatment  of  each  parti- 
cular legal  subject  when  taken  up  for  detailed  study.  The  pur- 
pose of  the  present  treatise  is,  as  far  as  it  may  practically  be  done 
by  the  author,  to  present  the  dominant  principles  and  general 
rules  that  constitute  the  frame  work  of  American  Law  as  it  now 
exists,  to  the  end  that  the  student,  at  the  beginning  of  his  course, 
may  be  given  a  fair  general  view  of  the  fundamental  doctrines 
which  are  to  be  elaborated  later  on,  as  to  each  particular  subject 
when  taken  up  in  detail. 

The  classification  which  is  perhaps  as  full  and  simple  as  any  is 
as  follows: 

(1)  By  discovery. 

(2)  By  conquest. 

(3)  By  production. 

(4)  By  increase. 

(5)  By  legal  succession  to  the  rights  of  another. 

Discovery. — Discovery  is  a  recognized  method  of  acquiring 
property  in  the  thing  discovered.  The  most  frequent  application 
of  the  doctrine  is  in  connection  with  the  discovery,  so  called,  of 
new  countries  by  virtue  of  which  fact,  the  government  under 
whose  authority  the  discover  was  acting  asserts  title  and  domin- 
ion over  the  land.  The  doctrine  has  its  application,  however,  in 
private  law  and  he  who  really  discovers  a  thing  of  value  is  re- 
garded as  entitled  absolutely,  or  to  a  less  extent  specified  by  law, 
to  its  uses  and  benefits. 


358  AMERICAN   ELEMENTARY   LAW. 

Conquest. — This  method  also  has  application  among  the 
nations  of  the  earth.  When  one  people  successfully  wage  war 
against  another  and  overpower  them,  the  conqueror  asserts  poli- 
tical rights,  to  a  greater  or  less  extent,  over  the  territory  of  the 
conquered,  and  becomes  the  owner  of  the  public  property  of  the 
subjugated  people.  This  is  not  recognized  as  a  legal  method  of 
acquiring  ownership  over  private  property  that  belongs  to  or  is 
in  the  possession  of  another  person.  If  it  has  any  application  as 
a  basis  of  private  right  it  is  in  those  cases  where  some  one  has 
subdued  or  tamed  some  animal,  wild  by  nature,  and  has  so  ac- 
quired a  property  right  in  it. 

Production. — Production  is  a  well  recognized  basis  of  private 
property  right.  He  who,  by  his  own  skill  and  labor  in  the  use  of 
his  own  faculties  or  of  things  already  belonging  to  him  or  by  a 
combination  of  these,  produces  some  new  thing,  the  law  recog- 
nizes as  owner  of  the  thing.  As,  for  example,  the  crop  which  a 
man  raises  on  his  own  land,  or  the  implement  which  the  smith 
manufactures  from  his  own  material  by  his  own  labor,  or  the 
book  produced  by  the  author,  or  the  picture  drawn  by  the 
painter,  are  respectively  recognized  by  law  as  belonging  to  him 
by  whom  each  is  produced.  The  law  goes  further  than  this  and 
recognizes  that  he  who  has  produced  or  manufactured  a  thing  at 
his  own  expense,  though  in  so  doing  he  may  have  employed  the 
labor  and  skill  of  others,  is  the  owner.  If  two  or  more  co-operate 
in  the  production  of  a  thing,  each  contributing  his  due  share  and 
proportion,  there  being  no  understanding  between  them,  express 
or  implied,  the  production  will  belong  to  both  jointly.  If  two  or 
more  co-operate  in  the  production  of  a  thing  under  an  agreement 
express  or  impHed,  that  the  production  is  to  be  at  the  expense  of 
one  who  is  to  pay  the  other  or  others  for  their  contribution, 
whether  of  capital,  material,  skill,  or  labor,  the  law  respects  the 
agreement  and  regards  the  thing  produced  as  belonging  to  him 
who  is  recognized  as  owner  by  the  agreement  and  makes  him  a 
debtor  to  the  other  party  or  parties  contributing  for  the  amount 
agreed  upon  if  they  so  specify  or  to  the  reasonable  value  of  the 
contribution,  if  there  be  no  understanding  as  to  the  amount. 

Difficult  questions  arise  when  a  thing  really  belongs  to  one  per- 
son, and  another,  obtaining  possession  of  it,  so  changes  the  thing 
by  working  upon  it  or  by  incorporating  it  with  other  things  as  to 


PEOPEBTY.  859 

put  it  into  an  essentially  different  form,  or  give  It  an  essentially- 
different  character  from  that  which  it  had.  For  instance,  a  man 
owns  a  tract  of  land  with  trees  growing  on  it  suitable  to  be  sawed 
into  lumber.  Another,  without  the  knowledge  or  consent  of  the 
owner  goes  upon  the  land,  cuts  down  the  growing  trees  and  saws 
them  up  into  lumber  ready  for  the  market.  Some  of  the  lumber 
he  sells  to  another  party  who  uses  it  in  the  building  of  a  house. 
To  whom  does  the  unsold  lumber  in  the  possession  of  the  man 
who  sawed  it  belong?  To  whom  does  the  house  built  by  the  third 
party  out  of  the  lumber  belong?  The  answer  of  the  law  is  that 
the  lumber  belongs  to  the  owner  of  the  trees,  if  he  sees  fit  to  assert 
his  title.  While  the  form  of  the  tree  has  been  changed,  still  the 
timber  that  was  in  the  tree  can  be  identified  as  the  lumber  in  the 
yard.  Though  changed  in  form,  there  is  no  such  change  in  sub- 
stance or  in  use  and  no  such  incorporation  with  other  things  be- 
longing to  another  person  as  to  prevent  or  render  unusually  dif- 
ficult identification  in  fact,  or  to  make  reclamation  of  the  identi- 
cal thing  seriously  hurtful  to  another,  so  the  lumber  belongs  to 
the  owner  of  the  trees.  The  case  is  different  with  the  house. 
Here,  while  the  identity  of  the  thing  may  be  fairly  traced,  it  has 
become  so  united  with  and  incorporated  in  the  premises  of  an- 
other that  it  cannot  be  detached  therefrom  without  serious  sacri- 
fice of  value.  The  ownership  of  the  lumber  could  not  draw  to  it- 
self the  ownership  of  the  land  on  which  the  house  is  builded.  To 
separate  the  house,  as  a  building,  from  the  land  would  require  se- 
rious invasion  of  the  rights  of  the  owner  of  the  land  and  also  seri- 
ous loss  in  value  beside  the  appropriation,  by  the  former  owner  of 
the  trees,  of  the  results  of  the  labor  and  expense  of  him  who  built 
the  house.  To  permit  the  owner  of  the  trees  to  enter  on  the  land 
and  tear  down  the  house  and  reclaim  the  individual  pieces  of  lum- 
ber would  be  subject  to  all  the  objections  just  argued  against  the 
removal  of  the  house  to  an  even  greater  extent  than  in  such  re- 
moval. In  view  of  these  facts,  the  law  does  not  permit  the  owner 
of  the  trees  to  follow  and  reclaim  the  lumber  in  the  house  but 
gives  him  remedy  against  the  man  who  cut  the  timber  for  the 
market  value  of  the  lumber. 

There  is  quite  a  contrarity  of  opinion  upon  the  points  just 
stated.  Some  of  the  courts  hold  that  the  owner  of  the  timber  can- 
not recover  the  sawn  lumber,  or  its  market  price,  if  the  owner 


:>(')()  AMERICAN   ELEMENTARY   LAW. 

elects  to  do  that,  unless  the  cutting  of  the  trees  and  the  sawing  of 
the  lumber  is  done  in  bad  faith,  that  is,  with  knowledge  that  the 
trees  did  not  belong  to  him  who  cut  them,  but  wherever  the  cut- 
ting and  sawing  is  done  in  the  honest  belief  that  the  trees  belong 
to  him  who  cut  them,  the  true  owner  can  only  recover  the  market 
value  of  the  trees  as  they  stood  upon  the  ground. 

There  is  also  difference  of  opinion  in  the  cases  as  to  the  burden 
of  proof  on  the  subject  of  good  faith.  Some  of  the  courts  hold  that 
the  owner,  to  entitle  him  to  recover  the  value  of  the  manufac- 
tured product  must  show  that  the  wrongful  manufacturer  acted 
in  bad  faith,  while  others  hold  that  proof  of  the  wrongful  taking 
and  exercising  dominion  over  the  property  of  another  is  sufficient 
to  subject  the  wrongful  manufacturer  to  liability  for  the  manu- 
factured value  unless  he  shows  that  he  acted  in  good  faith  in  tak- 
ing and  dealing  with  the  thing. 

Increase. — Increase  of  or  from  the  thing  owned  enures  to  the 
benefit  of  the  owner.  This  is  true  whether  the  increment  comes 
in  enhanced  value  of  the  thing,  whether  due  to  changes  in  it 
made  by  the  owner  or  by  advantageous  circumstances  or  by  nat- 
ural growth  or  accretion  of  the  thing  itself,  or  by  the  develop- 
ment or  production  by  the  thing  owned  of  other  things  hav- 
ing separate  existence.  Thus,  if  a  man  buys  a  tract  of  land 
and  puts  it  in  cultivation,  all  its  enhanced  value  enures  to 
his  benefit.  If  he  buys  a  tract  of  land  and  leaves  it  unimproved 
but  by  change  in  environment  such  as  the  development  of  the 
country,  the  building  of  railroads,  etc.,  the  land  increases  in 
value,  this  increment,  though  unearned  by  him,  still  enures  to  his 
benefit.  If  a  man  owns  a  flock  of  sheep,  the  wool  grown  upon 
them  is  his,  as  are  the  lambs  also. 

Legal  Succession  to  the  Rights  of  Another. — This  is  by  far  the 
most  common  method  of  acquiring  property.  Practically  every- 
thing subject  to  ownership  in  use  in  the  ordinary  social  and  busi- 
ness life  of  the  community  belongs  to  some  person  or  persons. 
The  rights  of  these  owners  may  be  transferred  or  passed  over 
from  them  to  other  persons  who  thereby  succeed  to  such  rights. 

The  methods  of  transferring  property  are  numerous  and  have 
been  classified  in  many  different  ways.  Perhaps  as  simple  a 
classification  as  we  can  make  is  as  follows : 

(1)  Transfers  by  concurrent  action  of  both  parties. 


PROPERTY.  361 

(2)  By  act  of  the  transferee  alone. 

(3)  By  act  of  the  transferor  alone. 

(4)  By  operation  of  law. 

(5)  By  act  of  governmental  agencies. 

By  Act  of  Both  Parties. — Under  this  would  be  embraced  all 
changes  of  ownership  based  upon  agreement  of  parties.  These 
are  of  two  general  kinds,  (a)  Those  in  which  the  agreement  has 
all  the  essentials  of  contract,  and  (b)  those  in  which,  though  the 
agreement  lacks  one  or  more  of  the  elements  of  contract,  still  is 
so  far  executed  that  vested  rights  have  passed  under  it. 

Contract  is  the  most  frequent  method  by  which  ownership  is 
transferred.  This  covers  a  very  large  majority  of  the  business 
transactions  of  the  world.  To  be  effective  these  agreements  must 
be  genuine  involving  mutual  understanding  and  mutual  will  and 
must  have  the  four  essential  elements  of  contract. 

Such  agreements  as  constitute  title  to  real  estate  are  usually 
spoken  of  as  conveyances  and  are  evidenced  by  formal  written 
instruments  executed  in  conformity  with  the  local  law,  known  as 
deeds.  Contracts  transferring  estates  in  land  less  than  a  freehold 
are  usually  called  leases  and  if  for  a  period  longer  than  that 
designated  in  the  applicable  statute  of  frauds,  usually  one  year, 
they  are  required  to  be  executed  with  the  same  formalities  as 
conveyances  of  real  estate.  There  are  numerous  other  contracts 
which  affect  the  title  to  land  not  included  in  the  foregoing,  but 
the  two  mentioned  are  the  most  common. 

Contracts  which  transfer  the  title  to  personal  property  for  a 
price  in  money  are  known  as  sales.  Contracts  by  which  one  piece 
of  personal  property  is  transferred  in  consideration  of  the  trans- 
fer of  other  personal  property  are  called  barters  or  exchanges. 
Contracts  regarding  ownership  of  personal  property  which  affect 
only  the  possession  and  not  the  title  are  known  as  bailments. 

Agreements  not  amounting  to  contract  which  still  affect  the 
ownership  of  property  are  principally  gifts,  which,  as  we  have 
seen,  when  fully  executed,  pass  title  to  the  thing  given. 

The  effect  of  agreements  lacking  each  of  the  other  elements  of 
contracts  as  to  vesting,  rights  has  been  heretofore  considered  un- 
der the  head  of  Agreements  not  Amounting  to  Contract,  pp.  231- 
241,  supra. 


362  AMERICAN   ELEMENTARY   LAW. 

By  Act  of  the  Transferee. — Under  this  head  comes  the  acqui- 
sition of  property  by  adverse  possession  and  user.  This  is  usually 
treated  under  the  head  of  prescription  or  limitation. 

Prescription  arises  when  one,  not  the  owner  of  property,  has 
been  in  possession  of  and  has  used  it  as  his  own  for  such  length 
of  time  that  the  law  presumes  a  grant  in  his  favor  from  the 
owner.  To  have  this  effect  the  possession  must  be  continuous  for 
a  required  term,  must  be  held  as  a  matter  of  right  in  opposition 
to  the  ownership  and  claim  of  the  true  owner,  and  no  legal  pro- 
ceedings must  have  been  instituted  against  the  possessor  by  the 
owner  for  the  recovery  of  the  thing.  In  the  language  of  the  law, 
the  possession  must  be  uninterrupted,  adverse,  and  peaceable. 
When  these  three  facts  concur  and  continue  for  the  length  of 
time  recognized  as  applicable  to  the  particular  kind  of  property, 
they  give  title  to  the  original  trespasser. 

At  Common  Law  limitation,  strictly  speaking,  did  not  give  title 
to  the  thing  owned  but  was  merely  a  defense  to  any  suit  brought 
by  the  true  owner  for  its  recovery.  It  was  complete  protection  so 
long  as  the  wrongdoer  retained  possession  of  the  thing.  But  if 
he  lost  possession,  and  the  true  owner  acquired  it,  the  one  in 
whose  favor  limitation  had  run  could  not  recover  the  property 
from  its  rightful  owner  by  law. 

Limitation  arises  when  property  has  been  held  uninterruptedly 
adversely,  and  peaceably  for  a  designated  length  of  time,  under 
such  circumstances  that  the  Common  Law  did  not  presume  a 
grant.  The  presumption  of  a  grant  in  cases  of  prescription,  and 
the  absence  of  such  presumption,  in  limitation,  is  the  funda- 
mental difference  between  the  two  doctrines  at  Common  Law. 
The  practical  consequences  that  grow  out  of  this  fundamntal  dif- 
ference are  very  important. 

Under  many  of  the  statutes  of  limitation  as  they  now  exist  in 
the  different  States,  this  Common  Law  doctrine  is  set  aside,  and 
the  uninterrupted,  adverse,  peaceable  possession  of  property  for 
the  time  required  by  statute  vests  title  in  the  holder.  In  view  of 
the  prevalency  of  these  statutes  limitation  is  given  as  a  means  of 
acquiring  title. 

At  Common  Law,  and  under  most  statutes,  if  at  the  time  the 
adverse  possession  begins  the  true  owner  of  the  property  is  under 
legal  incapacity,  neither  prescription  nor  limitation  runs  against 
him  or  her  until  the  legal  incapacity  terminates.    If  there  are  two 


PROPERTY.  363 

or  more  disabilities,  prescription  or  limitation  does  not  begin  to 
run  until  the  removal  of  all.  If  the  owner  is  under  no  disability 
when  the  adverse  possession  begins,  a  disability  beginning  there- 
after does  not  affect  the  running  of  the  statute. 

There  are  some  things,  such  as  water  and  light,  that  are  ordi- 
narily regarded  by  law  as  common  property,  not  subject  to  own- 
ership by  a  particular  individual.  The  law,  however,  recognizes 
legal  rights  in  the  use  of  these.  If,  therefore,  one  person  shall 
use  water  or  light  in  a  manner  or  in  amount  beyond  his  right  and 
under  such  circumstances  as  to  constitute  an  actionable  invasion 
of  another's  right  to  use  and  shall  continue  such  use  uninter- 
ruptedly, adversely,  and  peaceably  for  the  required  length  of 
time,  his  right  to  continue  the  use,  in  the  manner  and  for  the 
purposes  and  to  the  extent  that  he  has  so  used  it,  will  be  protected 
by  the  law  of  prescription  or  limitation  according  to  the  facts. 
Such  right,  however,  cannot  be  extended  so  as  to  cover  uses  for  dif- 
ferent purposes  or  in  a  different  manner  or  to  a  greater  extent. 
Deviation  from  the  accustomed  use  to  any  appreciable  extent 
would  be  an  additional  burden  upon  the  other  party  unsupported 
by  previous  usage. 

By  Act  of  the  Transferor. — At  Common  Law  and  under  the 
Statutes  of  the  several  States  persons  having  the  proper  qualifi- 
cations can  dispose  of  their  property  by  will.  The  usual  qualifi- 
cations are  that  the  person  shall  be  twenty-one  years  of  age,  or 
married,  and  of  sound  mind.  Wills,  to  pass  the  title  to  real  es- 
tate, must  be  in  writing  and  signed  by  the  testator.  The  will 
must  be  either  wholly  written  by  the  maker  or  must  be  signed  in 
the  presence  of  and  attested  by  two  or  more  witnesses.  Oral  wills 
are  recognized  as  valid  means  for  transferring  personal  property. 
Sometimes  the  amount  of  property  is  limited.  For  an  oral  will 
to  be  good  it  must  be  made,  if  by  an  ordinary  person,  in  the  con- 
scious presence  of  death,  the  testator  must  be  of  sound  mind,  and 
the  dispositon  of  the  property  must  be  certain.  The  will  must 
be  proven  by  several  witnesses  and  as  so  proven  by  the  different 
witnesses  must  be  of  the  same  legal  effect  and  in  substantially  the 
same  language. 

"Wills  made  in  conformity  with  law  are  recognized  as  valid  con- 
veyances of  property.  As,  however,  the  will  constitutes  the  title 
to  the  property,  before  it  can  be  available  aa  such  its  genuineness 


364  AMERICAN   ELEMENTARY   LAW. 

and  authenticity  must  be  proven  before  and  declared  by  some 
court  of  competent  jurisdiction.  The  will,  when  thus  probated, 
vests  the  rights  therein  conferred  upon  the  devisees  and  legatees 
according  to  its  terms. 

Rights  under  a  will,  as  those  acquired  by  inheritance,  are  sub- 
ject to  such  conditions  regarding  the  same  as  are  imposed  by  law, 
and  in  case  of  wills  by  the  terms  of  the  instrument.  The  princi- 
pal condition  imposed  by  law  grows  out  of  the  maxim  "That  a 
man  must  be  just  before  he  can  be  generous"  and  consequently 
that  the  rights  of  the  devisees  and  heirs  are  subject  to  the  just 
claims  of  creditors. 

In  a  number  of  States  there  are  provisions  for  the  care  and 
maintenance  of  the  family  of  the  deceased,  such  as  the  allowance 
for  temporary  support  and  protection  in  the  use  of  the  home 
which  are  superior  to  the  claims  of  either  creditors,  devisees,  or 
heirs. 

As  no  one  is  required  by  law  to  accept  property  under  a  will, 
it  might  be  more  logical  to  include  this  manner  of  acquiring 
property  under  the  head  of  Transfers  by  Concurrent  Action  of 
Both  Parties,  but  as  a  will  does  not  take  effect  till  after  the  death 
of  the  testator  and  no  acceptance  prior  thereto  could  preclude 
the  testator  from  subsequently  changing  the  will,  the  transfer 
cannot  strictly  be  spoken  of  as  resulting  from  the  concurrent  ac- 
tion of  both  parties. 

By  Operation  of  Law. — In  this  head  are  included  transfers  by 
inheritance.  The  Common  Law  and  the  statutes  of  the  different 
States  recognize  the  ties  of  kinship  and  the  fact  that  in  the  great 
majority  of  lives,  one  of  the  great  stimulants  for  industry  and 
economy  is  the  desire  to  provide  for  one's  family.  Hence  it  is 
that  the  law  of  inheritance  in  some  form  exists  in  all  Common 
Law  countries. 

The  details  of  this  law  depend  upon  the  sovereign 's  conception 
of  public  policy.  In  monarchical  or  other  aristocratic  forms  of 
government  care  is  taken  to  create  and  preserve  large  estates  in 
land  and  the  laws  of  descent  are  made  so  as  to  effect  this  pur- 
pose. In  democratic  countries,  where  equality  of  opportunity  is 
the  basic  doctrine,  the  laws  of  descent  reflect  this  policy  and  es- 
tates are  distributed  on  more  nearly  equal  terms. 

In  contemplation  of  law  the  right  of  the  heir  in  the  property  of 


PROPERTY.  365 

the  deceased  vests  immediately  upon  the  latter 's  death.  This  in- 
vestiture of  right  is  by  operation  of  law  and  is  not  dependent 
either  on  the  desire  of  the  deceased  or  the  acceptance  of  the  heir. 
It  is  true  that  it  is  subject  to  repudiation  by  the  heir.  No  one  is 
compelled  to  receive  an  estate  by  inheritance  against  his  will,  but 
acceptance,  being  so  common,  and  under  most  conditions,  both 
reasonable  and  beneficial  to  the  heir,  in  the  absence  of  repudia- 
tion by  him,  it  is  presumed. 

There  are  a  number  of  other  conditions  under  which  title  is 
transferred  as  the  result  of  legal  proceedings  without  the  affirm- 
ative consent  of  the  party  divested  of  title,  but  in  none  of  these  is 
the  transfer  by  direct  operation  of  law  as  all  of  them  require  the 
active  intervention  of  governmental  agencies. 

By  Act  of  Governmental  Agencies. — One  of  the  chief  functions 
of  sovereignty  and  its  main  purpose  in  the  organization  of  gov- 
ernment is  to  protect  the  well  being  of  the  public  and  enforce  the 
just  rights  of  individuals.  In  order  to  enable  it  to  accomplish 
this  twofold  purpose  it  frequently  becomes  necessary  to  exert  its 
power  in  forced  changes  in  the  ownership  of  property. 

Transfers  made  for  Public  Purposes. — Transfers^of  title  made 
for  the  public  good  usually  are  effected : 

(1)  Under  the  power  of  eminent  domain. 

(2)  Under  the  taxing  power. 

(3)  By  escheat. 

(4)  By  forfeiture. 

Eminent  Domain. — The  property  rights  of  one  individual  can- 
not be  taken  from  him  and  transferred  to  another  for  private  use 
unless  such  transfer  be  based  upon  some  unlawful  conduct  of  the 
former  owner  judicially  ascertained.  Altogether  different  rules 
apply  when  property  is  needed  for  public  uses.  All  private  own- 
ership is  subject  to  the  superior  interests  and  rights  of  the  public 
and  if  the  well  being  of  the  public  so  requires  private  property 
may  be  taken  and  applied  to  the  public  use  without  or  against  the 
consent  of  the  owner.  This  right  and  power  to  take  the  property 
of  the  individual  and  apply  it  to  the  public  benefit  is  the  power  of 
eminent  domain.  Its  exercise  by  the  Federal  Government  is  reg- 
ulated by  the  Federal  Constitution,  and  by  the  several  State 
governments  by  provisions  in  their  respective  constitutions  all 
of  which  require  that  just  compensation  shall  be  made  to  the 


366  AMERICAN  ELEMENTARY   LAW. 

owner  of  the  property.  The  uses  for  which  property  may  be 
taken  under  this  power  must  be  public.  What  is  a  public  use 
is  difficult  of  ascertainment.  Such  use  includes  all  governmental 
purposes,  whether  the  actual  use  of  the  property  is  to  be  made  by 
the  government  through  public  officers  or  by  specially  authorized 
individuals  whom  the  government  permits  to  act  for  it  in  discharg- 
ing its  governmental  duties.  But  the  term  is  broader  even  than 
this  and  includes  uses  and  purposes  which  are  for  the  public 
benefit  whether  they  be  of  such  kind  as  are  ordinarily  regarded 
as  governmental  or  not. 

The  maintenance  of  public  buildings,  such  as  State  capitols, 
courthouses,  etc.;  of  public  highways,  such  as  the  ordinary 
country  roads  or  railroads;  of  public  means  of  communication, 
such  as  the  transmission  of  the  mails,  are  public  obligations  in  the 
strictest  sense.  Property  may  therefore  be  taken  for  such  uses, 
whether  the  actual  user  of  the  property  is  to  be  by  governmental 
agency  direct  or  by  private  persons,  natural  or  artificial.  This 
difference,  however,  is  recognized  in  many  of  the  States.  Com- 
pensation must  always  be  made  no  matter  by  whom  the  public 
service  is  to  be  effected.  If,  however,  the  property  is  to  be  used 
by  direct  governmental  agency,  payment  need  not  be  made  nor 
secured  in  advance.  If  the  use  is  to  be  made  by  private  persons, 
the  payment  must  be  made  or  secured  at  the  time  the  property  is 
taken. 

Taxation. — Title  to  private  property  is  also  subject  to  be  di- 
vested under  the  taxing  power  of  the  State.  Justice  and  law  alike 
require  that  all  property  should  bear  its  equitable  part  in  the 
burden  of  taxation.  If  any  particular  owner  fails  to  pay  his 
lawful  share  of  the  tax  when  properly  assessed  against  him,  the 
State  by  taking  proper  action  can  sell  so  much  of  his  property  as 
is  necessary  to  bring  the  amount  of  his  tax  and  the  costs  and  pass 
valid  title  to  the  purchaser. 

By  Escheat. — The  use  and  development  of  the  lands  within  a 
State  are  essential  to  its  well  being.  The  State  may,  therefore, 
take  steps  necessary  to  prevent  the  ownership  of  land  from  lapsing 
or  to  prevent  its  being  held  in  perpetuity  or  by  aliens.  If,  there- 
fore, one  owning  land  dies  without  heirs  and  without  making  a 
will  and  without  owing  any  debts  the  State  can  by  legal  procedure, 
known  as  an  escheat,  have  these  facts  ascertained  and  order  the 


PROPERTY.  367 

property  sold  and  the  proceeds  to  be  placed  in  the  public  treas- 
ury subject  to  the  claims  of  lawful  heirs  if  any  shall  appear.  The 
title  to  the  property  would  pass  to  the  purchaser  at  the  sale  and 
it  would  thus  become  become  available. 

It  is  usually  regarded  as  bad  public  policy  to  permit  corpora- 
tions to  acquire  and  hold  lands  beyond  the  amount  reasonably 
needed  for  use  in  carrying  on  the  corporate  business.  The  laws 
of  the  several  States,  therefore,  usually  require  sales  of  all  sur- 
plus lands  held  by  corporations  within  a  reasonable  time  after 
same  are  acquired.  If  this  is  not  done,  the  government  can  insti- 
tute a  proceeding  and  escheat  the  property.  That  is,  sell  it  and 
divest  the  corporation  of  title  and  vest  it  in  the  purchaser,  pay- 
ing over  the  proceeds  of  the  sale,  less  the  cost  of  the  proceeding, 
to  the  corporation. 

It  is  also  regarded  as  bad  public  policy  to  have  the  lands  within 
a  government  owned  by  aliens.  In  many  States  there  are  stat- 
utes authorizing  the  escheat  of  lands  so  held  if  not  disposed  of 
voluntarily  by  the  alien  within  a  designated  time  after  acquisi- 
tion. 

By  Forfeiture. — Forfeiture  is  a  divestiture  of  right  by  reason 
of  wrongful  conduct  of  the  one  having  the  right.  In  some  in- 
stances the  right  forfeited  is  ownership  of  property.  This  in  most 
instances  involves  investiture  of  some  other  legal  person  with  the 
right  which  has  been  lost  by  the  former  owner.  Occasionally 
the  right  simply  lapses,  not  passing  to  anyone.  If  the  right  for- 
feited had  been  received  directly  from  the  State  it  either  revests 
in  the  State  or  lapses  according  to  the  nature  of  the  case.  If  the 
right  forfeited  had  been  directly  acquired  from  a  private  person 
it  either  reverts  and  revests  in  this  person  or  lapses.  In  every 
case  of  reversion  of  ownership  the  process  of  forfeiture  has 
resulted  in  the  passing  of  title. 

Transfers  of  Title  by  Governmental  Agencies  for  Good  of  In- 
dividuals.— Transfers  of  title  made  to  enforce  the  just  rights  of 
individuals  are  almost  invariably  effected  by  the  exercise  of  the 
judicial  power  of  the  government.  This  power  is  usually  put 
forth  in  proceedings: 

(1)  To  declare  forfeiture  of  private  rights. 

(2)  To  enforce  specific  performance  of  contracts  for  the  con- 
veyance, sale  or  barter  of  property. 


368  AMERICAN   ELEMENTARY   LAW. 

(3)  Suits  to  recover  possession  of  specific  property  or  remove 
cloud  from  the  title. 

(4)  Suits  for  partition. 

(5)  Suits  for  trover  and  conversion. 

(6)  Suits  for  the  collection  of  damages. 

In  the  first  four  of  these  the  transfer  of  the  title  is  very  fre- 
quently accomplished  by  the  judgment  of  the  court  directly  with- 
out the  necessity  of  action  by  any  other  officer  or  by  a  party  to 
the  litigation,  the  court  in  its  judgment  or  decree  declaring  the 
title  to  the  property  involved  in  the  litigation  to  be  in  the  one 
party  or  the  other.  Sometimes,  even  in  these  cases,  the  decree 
does  not  act  directly  upon  the  title  but  requires  the  transfer  of  the 
title  by  some  designated  person.  The  most  frequent  illustration 
of  this  occurs  in  a  suit  in  equity  for  the  specific  performance  of 
a  contract  to  convey  land.  Here,  ordinarily,  the  decree  does  not 
by  its  own  terms  transfer  the  title  from  the  defendant  to  the 
plaintiff,  but  requires  the  defendant  under  the  pains  and  penalties 
of  contempt,  to  execute  such  conveyance  as  the  contract  contem- 
plated.    This  rule  is  changed  in  some  States  by  statute. 

In  actions  for  trover  and  conversion  the  effect  upon  the  title 
to  the  thing  converted  is  indirect,  that  is,  it  is  not  specifically 
declared  in  the  judgment  nor  is  any  transfer  of  title  required  to  be 
made  by  the  parties.  It  is  manifestly  unjust  to  allow  the  plain- 
tiff to  compel  the  defendant  to  make  compensation  to  him  for  the 
full  value  of  the  property  converted  and  also  permit  the  plaintiff 
to  continue  to  be  the  owner  of  the  thing  for  which  he  has  been 
fully  paid.  It  is,  therefore,  universally  conceded  that  if  one  per- 
son owns  property  and  another  wrongfully  exercises  such  domin- 
ion over  it  as  to  constitute  a  conversion  of  it,  and  the  owner  sues 
the  wrongdoer,  charging  him  with  the  conversion,  and  recovers 
against  him  a  judgment  for  the  full  value  of  the  thing  and  col- 
lects the  full  amount  of  the  judgment,  the  concurrence  of  these 
facts  vests  in  the  defendant  all  the  estate  in  the  thing  which  the 
plaintiff  had.  Whether  or  not  all  of  these  facts  are  necessary  to 
vest  the  title  in  the  defendant  is  not  so  well  settled.  Some  courts 
hold,  that  bringing  the  suit  for  the  conversion  of  the  property 
and  claiming  the  full  value  as  damage  is  an  election  on  the  plain- 
tiff's part  to  regard  the  defendant  as  having  acquired  the  title 
to  the  thing  and  owing  the  plaintiff  therefor.     Other  courts  hold. 


PROPERTY.  3G9 

that  instituting  the  suit  is  not  a  final  election  by  the  plaintiff  but 
that  prosecuting  the  suit  to  judgment  and  entry  of  judgment  is 
such  an  election  and  the  title  passes  at  that  time.  Others,  again, 
hold  that  even  obtaining  a  judgment  is  not  sufficient  but  that  the 
collection  and  retention  of  any  part  of  the  adjudged  value  is 
sufficient.  As  above  stated,  all  concur  in  the  view  that  receiving 
full  compensation  passes  title. 

Suits  for  the  collection  of  damage  never  result  in  direct  trans- 
fer of  title.  In  such  actions,  if  the  plaintiff  is  successful,  the 
court  declares  the  defendant  to  be  justly  indebted  to  him  in  the 
amount  ascertained  to  be  due  and  authorizes  the  clerk  or  proper 
officer  of  the  court  to  issue  a  writ  authorizing  the  marshal,  sheriff, 
or  other  proper  executive  officer  to  collect  the  amount  due  from 
the  defendant  and  if  the  amount  is  not  paid  to  seize  upon  and  sell 
sufficient  property  belonging  to  the  defendant  to  bring  the  debt 
and  costs  of  collection.  If  the  money  is  not  paid  and  the  officer 
seizes  and  sells  property  of  the  defendant  in  accordance  with  the 
judgment  and  the  writ,  he  thereby  divests  the  former  owner  of 
his  estate  in  the  thing  sold  and  transfers  it  to  the  purchaser  at 
the  sale.  The  officer  is  authorized  and  required  to  execute  a 
proper  conveyance  of  the  property  showing  the  facts  of  the  sale 
and  his  authority  to  make  the  same  and  transferring  the  title  to 
the  purchaser. 
M 


CHAPTER  XIX. 

PROPERTY   (CONTD.) 

Limitations  Upon  Property  Rights. 

The  law  recognizes  no  such  thing  as  absolute  property  rights 
in  private  persons.     The  highest  title  known  to  the  law  is  subject : 

(1)  To  the  State's  right  of  eminent  domain. 

(2)  To  the  taxing  power  of  the  State. 

(3)  To  the  police  power  of  the  State. 

(4)  To  just  and  uniform  regulation  necessary  to  the  pro- 
tection of  the  equal  and  just  rights  of  others. 

Eminent  Domain  and  Taxation. — The  limitations  upon  the 
rights  of  the  owner  by  reason  of  the  State's  right  of  eminent  do- 
main and  taxation  are  sufficiently  disclosed  in  the  discussion  of 
those  subjects  uist  presented. 

Police  Power. — The  police  power  of  a  State  is  its  authority  to 
care  for  and  protect  the  health,  morals,  and  safety  of  the  people. 
It  has  never  received  exact  definition.  Under  it  a  great  many 
different  kinds  of  governmental  action  is  justified.  Many  of 
these  affect  more  or  less  directly  ownership  of  property  in  one  or 
more  of  its  aspects.  It  is,  perhaps,  not  an  over  statement  of  the 
modern  law  on  this  subject  to  say  that  the  State  in  the  exercise 
of  its  police  power  may  take  possession  of  private  property,  reg- 
ulate or  prevent  its  use,  modify  or  destroy  it,  or  require  or  forbid 
the  owner's  disposal  of  it,  whenever  it  is  demonstrable  that  the 
health,  morals,  or  safety  of  the  public  so  require. 

If  a  commodity  offered  as  a  food  can  be  shown  to  be  posi- 
tively injurious  to  health  the  State  can  prevent  its  sale  for  use  as 
a  food,  and  if  it  be  necessary  in  order  to  accomplish  this  can  take 
possession  of  the  thing  and  destroy  it.  If  it  is  demonstrable  that 
the  use  of  any  particular  thing  is  hurtful  to  the  health  or  morals 
of  the  individual  using  it,  and  consequently  to  the  public,  its  use 
may  be  regulated  or  absolutely  prohibited  as  the  public  interest 
may  requre.    If  the  thing  owned  is  of  such  nature  or  is  in  such 


PROPERTY.  37 1 

condition  as  to  be  a  serious  menace  to  the  health  or  property 
rights  of  a  number  of  other  individuals  it  may  be  destroyed  if  this 
be  necessary  to  their  safety. 

The  first  of  these  doctrines  is  illustrated  in  the  enactment  and 
enforcement  of  pure  food  laws  and  in  other  sanitary  regulations. 
The  second,  in  laws  regulating  or  prohibiting  the  carrying  of 
deadly  weapons,  sale  of  morphine,  cocaine,  and  intoxicating  liq- 
uors. The  third,  in  the  impounding  or  killing  animals  infected 
with  contagious  diseases  and  in  the  destruction  of  property  to 
prevent  the  spread  of  fires  in  cities.  Innumerable  other  illustra- 
tions might  be  given  but  these  will  suffice  to  show  the  general 
nature  of  the  limitations  now  under  consideration  and  the  nature 
and  extent  of  the  power  under  which  they  are  imposed. 

Regulations  Necessary  to  the  Proper  Protection  of  Individ- 
uals.— The  limitations  imposed  upon  the  individual  ownership  of 
property  for  the  just  protection  of  others  are  very  numerous  and 
very  important.  By  far  the  larger  portion  of  them  refer  to 
and  regulate  the  uses  to  which  the  property  may  be  applied;  a 
smaller  number  relate  to  the  condition  in  which  property  is  kept ; 
and  a  few  grow  out  of  the  nature  of  the  property  itself. 

There  is  an  ancient  maxim  of  the  law  that  a  man  must  so  use 
his  own  as  not  to  injure  another.  The  statement  in  this  form  may 
be  regarded  as  excellent  moral  advice  but  in  the  light  of  numerous 
decisions  applying  or  refusing  to  apply  it  can  hardly  be  said  to  be 
an  accurate  statement  of  the  law.  It  is  too  comprehensive  as  a 
statement  of  the  limitation  upon  the  right  of  use.  There  are 
many  conditions  under  which  a  person  may  legally  use  his  own 
although  the  direct  consequence  of  such  use  may  be  hurt  to  an- 
other. If  we  regard  the  maxim  quoted  as  a  correct  statement  of 
the  general  rule  of  the  law  and  the  cases  coming  under  the  latter 
statement  as  exceptions  to  it,  the  result  will  be  much  confusion 
and  perplexity.  To  avoid  this,  some  of  the  later  cases  have  at- 
tempted to  restrict  the  rule  by  amending  the  maxim,  making  it 
read  "One  must  so  use  his  own  as  not  to  injure  the  legal  rights 
of  another."  As  thus  modified  it  is  a  true  statement  of  a  fact 
but  can  hardly  be  regarded  as  the  enunciation  of  a  legal  rule  of 
any  value  either  to  the  student,  the  practitioner,  or  the  adminis- 
trator of  the  law,  for,  in  its  final  analysis  in  that  form,  it  simply 
announces  that  a  man  must  not  use  his  property  unlawfully. 


372  AMERICAN   ELEMENTARY   LAW. 

This  is  a  truism  which  affords  no  test  whatever  by  which  to  dis- 
tinguish between  lawful  and  unlawful  use. 

It  is  practically  impossible  to  formulate  a  general  statement 
which  will  indicate  either  all  of  the  uses  to  which  one  may  law- 
fully put  his  property,  or  all  of  the  uses  of  his  property  which 
the  law  forbids.  This  is  particularly  true  as  to  affirmative  wrong- 
doing by  the  owner.  The  legal  nature  of  each  particular  act  may 
be  readily  ascertainable  when  tested  by  the  particular  rules  of 
law  applicable  thereto.  And  this  is  most  frequently  the  case. 
There  seems,  however,  to  be  no  general  rule  sufficiently  compre- 
hensive to  include  all  these  affirmative  misuses  and  at  the  same 
time  specific  and  accurate  enough  to  be  of  much  practical  value 
in  determining  the  legal  nature  of  any  particular  act. 

Passing  over  to  the  negative  conduct  the  difficulties,  while  great, 
are  appreciably  diminished.  The  rule  here  is  that  the  law  re- 
quires of  every  owner  of  property  to  use  such  care  to  prevent  hurt 
therefrom  to  another  as  a  reasonably  prudent  person  should  use 
under  the  circumstances  of  the  particular  case.  If  he  has  used 
such  care,  and  notwithstanding  this,  injury  results  to  another, 
the  cases  are  rare  and  controlled  by  special  considerations  in 
which  liability  will  be  adjudged.  If  he  has  failed  to  use  such  care 
and  injury  to  another  directly  results  therefrom,  he  is  almost  in- 
variably held  liable  for  such  damage,  non-liability,  if  it  ever 
exists,  growing  out  of  some  peculiar  special  rule  of  law. 

Apart  from  and  in  addition  to  the  limitations  which  the  law 
puts  upon  the  owner's  right  to  use  the  thing  there  are  many  others 
which  grow  out  of  or  are  incident  to  the  nature  of  the  estate  or 
interest  which  the  owner  has.  These  will  be  better  considered 
under  the  head  of  Special  Ownership. 

There  are  a  number  of  limitations  upon  the  owner's  right  to 
receive  profit  from  things  owned.  The  most  conspicious  examples 
of  this  are  found  in  those  instances  in  which  the  owner  has  ap- 
plied the  thing  owned  to  a  public  use.  Under  these  circumstances 
sovereignty  claims  and  exercises  the  right  of  controlling  and 
limiting  the  charges  which  may  be  pxacted  of  members  of  the  pub- 
lic for  the  use  of  such  property,  as  in  the  case  of  railroads,  tele- 
graphs, grain  elevators,  etc. 

Probably  the  most  common  example  of  limitation  by  law  upon 
the  amount  of  profit  which  may  be  realized  from  property  em- 


PROPERTY.  373 

ployed  in  private  enterprise  is  found  in  the  usury  laws  of  the 
different  States.  These  laws  forbid  that  the  owner  of  money  shall 
collect  or  receive  interest  thereon  in  excess  of  a  specified  per 
cent.  The  limitation  is  applied  without  reference  to  whether  the 
money  was  earned  in  the  prosecution  of  a  public  or  giwm'-public 
business  or  is  to  be  employed  in  such  business.  Let  the  transac- 
tion be  ever  so  private  in  all  of  its  features,  the  limitation  still 
applies  and  contracting  for  and  accepting  usurious  interest  would 
still  be  unlawful. 

There  are  material  limitations  on  the  owner's  right  to  dispose 
of  property.  Often  these  limitations  are  found  in  certain  re- 
quirements as  to  the  form  and  manner  of  evidencing  the  disposi- 
tion. This  is  illustrated  in  the  laws  regulating  the  conveyance 
of  real  property  and  not  infrequently  the  transfers  of  personalty. 
Sometimes  the  limitation  goes  beyond  regulation  and  forbids  dis- 
position of  the  property  either  to  or  by  certain  persons  or  at  cer- 
tain times  or  under  specified  conditions  and  in  extreme  cases, 
absolutely. 

These  limitations  should  not  be  and  are  not  imposed  arbitrarily 
but  only  under  such  circumstances  as  are  required  by  sound  pub- 
lic policy  for  the  proper  protection  of  the  community  and  of  pri- 
vate individuals. 

General  Ownership. 

"When  the  five  elements  of  ownership  as  to  a  thing  are  all  in 
one  person  he  is  regarded  in  law  as  the  general  owner.  He  is 
sometimes  spoken  of  as  the.  absolute  owner.  In  view  of  the  fact 
that  the  greatest  estates  known  to  the  law  are  subject  to  many  of 
the  limitations  just  discussed  it  is  not  accurate  to  designate  them 
as  absolute. 

The  general  ownership  of  real  property  is  called  a  fee  simple 
estate.  As  to  personal  property  there  seems  to  be  no  more  specific 
designation  than  general  ownership. 

Special  Ownership. 

"When  the  estate  of  the  owner  does  not  include  all  of  the  five 
elements  of  ownership  to  the  full  extent  to  which  they  are  recog- 
nized by  law  it  is  known  as  special  ownership.  It  is  apparent 
that  these  estates  may  be  very  numerous  and  quite  different,  the 
one  from  the  other.     The  interest  of  the  special  owner  may  be 


374  AMERICAN   ELEMENTARY   LAW. 

limited  to  any  one  of  the  five  elements  of  general  ownership,  and 
need  not  be  complete  or  exclusive  in  that  regard.  If  the  general 
owner  of  a  thing  should  lose  it  and  another  should  find  it  and  take 
it  into  his  possession  for  the  purpose  of  finding  the  owner  and 
rastoring  the  thing  to  him,  this  possession  would  be  lawful  and 
as  against  every  one  except  the  true  owner  would  be  protected  by 
law.  But  the  finder  would  have  no  right  to  use  nor  to  profit  by 
nor  to  change  nor  dispose  of  the  thing  found.  If  the  thing  were 
of  such  a  nature  that  use  would  be  beneficial  to  it  the  law  would 
justify  using  it  so  far  as  would  be  advantageous  to  it,  but  if  the 
finder  should  use  it  for  his  own  advantage  and  not  for  the  benefit 
of  the  thing  this  would  be  unlawful.  The  finder  would  not  be 
legally  justified  in  profiting  by,  modifying,  destroying  or  dispos- 
ing of  the  thing. 

Even  if  a  person  comes  into  possession  of  property  unlawfully 
by  trespass,  or  even  by  theft,  his  claim  to  the  thing  evidenced  by 
his  actual  possession  will  be  recognized  and  protected  so  far  as 
the  good  order  of  society  requires.  If,  therefore,  B  steals  prop- 
erty of  A  and  has  it  in  his  possession  and  C  steals  it  while  it  is  in 
the  possession  of  B,  in  indicting  C  for  his  theft  the  indictment  may 
allege  that  the  thing  stolen  belonged  to  B  and  was  taken  from 
his  possession  and  C  could  not  avoid  conviction  by  proving  that 
B  was  not  the  true  owner  but  only  held  the  thing  by  reason  of  his 
theft.  To  state  the  matter  differently  C  could  not  go  behind  B's 
actual  possession  as  evidence  of  title  and  prove  B  's  wrong  in  order 
to  escape  punishment  for  his  own  crime.  It  is  in  this  sense  that 
we  speak  of  actual  possession  as  giving  title  or  constituting  evi- 
dence of  ownership. 

Special  ownership  extends  from  the  very  limited  interest, 
based  upon  actual  possession  as  just  discussed,  through  all  the 
various  combinations  of  the  elements  of  ownership,  up  to  that 
high  estate  known  as  general  ownership.  As  to  real  property  it 
includes  all  estates  less  than  fee  simple.  As  to  personalty  it  in- 
cludes every  legal  right  which  a  person  may  have  in  a  thing  less 
than  general  ownership. 

TITLE. 

Legal  evidence  of  ownership  or  estate  is  known  as  title.  Title 
and  ownership  or  estate  are  so  closely  connected  that  the  terms 
are  frequently  used  inter-changeably,  but  the  most  accurate  tech- 


PROPERTY.  375 

nical  use  limits  ownership  or  estate  to  the  right  in  the  thing  and 
title  to  the  means  by  which  the  existence  of  the  estate  may  be 
proven.  A  man  buys  a  tract  of  land  paying  its  full  value  and 
obtaining  a  fee  simple  estate.  This  right  of  full  and  complete 
ownership  is  his  estate.  The  deed  from  his  vendor  to  himself,  in 
connection  with  the  deeds  under  which  his  vendor  had  previ- 
ously held  the  property,  constitutes  his  title,  by  which  the  fact 
that  he  owns  this  land  may  be  proven. 

As  indicated  in  the  foregoing  illustration,  one  means  by  which 
title  is  proven  is  by  formally  executed  written  instruments  con- 
veying the  thing.  This  is  the  method  required  in  transferring 
real  estate,  leasehold  estates  in  land  for  longer  than  one  year,  and 
a  few,  though  very  few,  transfers  of  other  personal  property. 

In  most  instances,  the  title  to  personal  property  exists  in  parol 
merely.  That  is,  is  evidenced  by  facts  which  are  not  reduced  to 
Writing  but  must  be  proven  by  oral  testimony.  The  law  permits 
parties  transferring  any  kind  of  personal  property  to  evidence 
this  by  written  instruments,  but  if  this  is  only  permitted  and  not 
required,  so  far  as  third  persons  are  concerned,  the  fact  of  acqui- 
sition of  the  property  may  still  ordinarily  be  proven  by  parol 
testimony.  As  between  the  parties  to  the  contract,  the  rule  as  to 
the  paper  being  the  best  evidence  is  more  rigidly  enforced. 

Actual  possession  of  a  thing,  whether  real  or  personal  prop- 
erty, is  evidence  of  ownership  and  will  protect  the  one  in  posses- 
sion in  holding  the  thing  unless  he  who  demands  it  can  prove  a 
superior  right  in  himself. 

Uninterrupted,  peaceable,  adverse  possession  for  the  period  re- 
quired by  law  does  not  constitute  title  under  the  Common  Law 
but  does  under  the  statutes  of  many  of  the  States.     • 

SUBJECT  MATTER. 

Almost  everything  except  human  beings,  and  water,  light  and 
air,  in  their  natural  condition  as  provided  by  nature,  is  subject 
to  legal  ownership.  There  are  many  things  that  are  not  owned. 
These  consist  mainly  in  animals  of  different  kinds  which  have 
never  been  reduced  to  possession  by  man  nor  brought  within  his 
continuous  dominion  in  such  way  as  to  belong  to  anyone.  If  any 
individual  shall  domesticate  one  or  more  of  such  animals,  brii 
ing  it  under  his  actual  possession  and  control,  it,  and  its  increase1, 


376  AMERICAN   ELEMENTARY  LAW. 

would  belong  to  the  captor.  So,  if  anyone  acting  within  the 
limits  of  the  game  law  shall  kill  a  wild  animal,  thus  reducing  it 
to  possession,  it  thereby  becomes  his  property. 

THE  QUALITIES  OP  THINGS. 

Things  Permanent  and  Things  Transitory. 

Some  things  are  permanent,  that  is,  exist  indefinitely;  while 
others  are  transitory,  lasting  only  for  a  short  while.  The  length 
of  time  for  which  different  animals  will  live  varies  greatly,  but  ex- 
perience proves  that  even  the  most  long  lived  must  ultimately  die, 
and  hence  all  living  animals,  considered  by  themselves,  are  re- 
garded as  transient.  In  a  few  instances,  as  deer  or  game  in  the 
parks  of  the  land  holders  in  England,  the  particular  animal  is  not 
considered  as  a  thing  apart  from  the  others  in  the  herd  on 
the  premises  and  the  whole  herd  is  regarded  by  legal  fiction  as  a 
part  of  the  land  upon  which  it  is  kept,  and  so  the  herd,  and  its 
constituent  members,  are  looked  upon  as  permanent.  This,  of 
course  is  a  legal  fiction  of  very  narrow  application. 

Things  Movable  and  Things  Immovable. 

Some  things  are  immovable,  that  is,  cannot  be  taken  from  place 
to  place,  while  others  are  of  such  nature  that  they  may  be  moved 
at  any  time,  and  some  can  be  restrained  in  one  locality  with  diffi- 
culty. Immovable  things  are  not  necessarily  tangible  or  discern- 
ible by  the  senses.  An  easement  is  never  tangible,  but  is  usually 
of  such  nature  that  it  can  only  be  enjoyed  or  rights  under  it  ex- 
ercised at  a  particular  place. 

Things  Corporeal  and  Things  Incorporeal. 

Things,  again,  are  divided  into  corporeal  and  incorporeal. 
Corporeal  things  are  those  which  may  be  discerned  by  the  nat- 
ural senses ;  incorporeal,  are  those  which  exist  only  in  thought  or 
legal  contemplation. 

There  is  frequently  such  close  relation  between  certain  cor- 
poreal and  incorporeal  things  that  the  mind,  and  even  the  law  it- 
self at  times,  confuses  the  two.  To  illustrate,  A  loans  B  a  thou- 
sand dollars  which  B  promises  to  pay  back  in  six  months.  These 
facts  clearly  create  a  debt  of  B  to  A.  This  debt,  legally  speak- 
ing, is  a  real  thing,  having  actual  existence.  It  is  not  discernible 
by  the  senses  and  is,  therefore,  incorporeal.     As  a  part  of  the 


PROPERTY.  377 

contract  by  which  B  borrows  the  money  he  executes  and  delivers 
to  A  his  promissory  note  due  six  months  thereafter,  and  payable 
to  A  or  order.  This  note  does  not  create  nor  constitute  B  's  debt 
to  A,  but  it  is  the  best  evidence  of  that  debt  and  the  terms  of  the 
agreement  between  the  parties  with  reference  thereto,  and  is  very 
frequetly  spoken  of  as  the  debt  itself.  Its  close  connection 
with  the  debt  and  its  value  is  shown  by  the  fact  that  A 's  transfer 
of  the  note  carries  with  it  the  transfer  of  the  right  to  demand  and 
receive  the  money  from  B ;  and  by  the  further  fact,  that  if  B  does 
not  pay  the  debt  and  A  brings  suit  against  him  to  collect  it,  he  is 
not  permitted  to  prove  the  existence  of  the  debt  except  by  the 
production  of  the  note,  so  long  as  it  is  in  existence  and  subject  to 
his  control.  So  far  is  this  rule  carried  that  if  A  has  purposely 
and  wrongfully  destroyed  the  note  he  cannot  thereafter  prove 
the  existence  of  the  debt  by  any  evidence  whatever  and  so  cannot 
compel  its  payment  by  law.  On  the  other  hand,  the  fact  that  the 
note  is  not  the  debt  is  conclusively  shown  by  the  rules  of  law 
which  enable  A  to  sue  for  and  recover  the  amount  due  on  the 
note  notwithstanding  the  note  has  been  innocently  lost  or 
destroyed  by  him. 

These  same  conditions  exist  with  regard  to  many  other  rights 
and  the  evidences  of  the  right.  This  is  true  of  a  share  of  stock  in 
a  corporation  and  the  certificate  of  stock  which  is  the  legal  evi- 
dence of  the  existence  of  the  share.  It  is  perhaps  the  real  differ- 
ence between  estate  and  title. 

It  is  clear  that  differences  so  great  as  those  between  things  per- 
manent and  transitory,  things  movable  and  immovable,  and 
things  corporeal  and  incorporeal,  cannot  be  entirely  ignored  by 
the  law.  On  the  contrary,  these  distinctions  are  taken  very 
largely  into  account  by  the  law  in  dealing  with  things  and  in  es- 
tates or  interests  in  things,  and  the  methods  by  which  title  may 
be  proved. 

Things  Real. 

Things  which,  in  their  nature,  are  permanent  and  immovable, 
or  to  which  these  qualities  are  attributed  by  fiction  of  law  are 
called  things  real.  Things  not  possessing  these  qualities  or  to 
which  these  qualities  are  not  attributed  by  law  are  tilings  per- 
sonal or  chattels. 


378  AMERICAN   ELEMENTARY   LAW. 

The  terras  most  generally  used  to  denote  things  real  are  lands, 
tenements,  and  hereditaments.  Eaeh  of  these  in  some  measure 
suggest  the  idea  of  permanency  and  immobility.  Land  signifies 
the  earth's  surface ;  a  tenement  is  such  property  as,  under  the  old 
Common  Law,  could  have  been  held  by  feudal  tenure.  These 
holdings  were  always  lands  or  things  immediately  connected 
therewith.  Hereditaments  were  things  capable  of  being  inherited. 
Under  the  old  Common  Law,  lands  and  estates  in  land  went  to 
the  heirs  of  the  deceased  owner,  while  chattels  were  used  to  pay 
the  debts  of  the  ancestor,  the  surplus,  if  any,  going  to  the  per- 
sonal representative  of  the  deceased  rather  than  to  his  heirs. 

Under  the  American  Law  in  which  feudal  tenures  were  never 
known,  and  under  which  personal  property  is  as  heritable  as 
land,  the  terms  tenements  and  hereditaments  have  become  less 
applicable  and  the  word  land  is  now  used,  ordinarily,  to  indicate 
all  immovable  and  permanent  things.  Following  this  testimony 
of  the  law,  we  will  use  the  word  land  in  this  sense  most  frequently 
in  our  treatment  of  the  subject. 

Things  real  include  both  corporeal  and  incorporeal  things. 
The  corporeal  are  now  generally  included  under  the  term  land, 
including  the  surface  of  the  earth  and  things  permanently  an- 
nexed thereto  and  in  law,  made  parts  thereof.  The  incorporeal, 
at  Common  Law,  were  held  to  include  a  number  of  heritable  rights 
issuing  out  of  or  exercisable  in  connection  with  corporeal  things. 
Of  these  the  most  important  at  this  time  are  known  as  easements. 

Land. — Land  embraces  all  the  material  substances  which  con- 
stitute the  surface  of  the  earth,  including  soil,  rocks,  minerals  of 
all  kinds,  and  water;  also  trees,  and  all  other  natural  vegetation 
growing  from  and  attached  to  the  soil ;  and  all  permanent  struct- 
ures and  improvements  erected  on  the  soil  by  the  owner,  or  others 
lawfully  in  possession,  with  the  intent  to  fix  or  attach  the  same 
permanently  thereto,  or  erected  by  trespassers  regardless  of  the 
intent  with  which  they  are  made.  Structures  so  annexed  are 
called  fixtures. 

According  to  the  ancient  Common  Law,  he  who  owned  any 
portion  of  the  earth's  surface  was  held  to  own  to  the  center  of 
the  earth  below  and  to  the  vault  of  the  heavens  above.  Under 
this  doctrine,  no  one  could  dig  so  deep  into  the  earth  as  to  get  be- 
low the  estate  of  him  who  owned  the  surface,  nor  could  he  go  so 


PROPERTY.  379 

high  in  space  as  to  be  above  this  estate.  The  latter  doctrine,  that 
is,  that  ownership  of  the  surface  extends  to  the  vault  of  the 
heavens,  is  being  questioned  of  late  years.  What  the  result  will 
be  cannot  now  be  determined.  If  the  right  of  the  owner  of  the 
soil  stops  short  of  the  vault  of  the  heavens  at  just  what  distance 
above  the  surface  it  shall  cease  and  how  high  one  passing  over  it 
must  go  to  avoid  being  a  trespasser  is  not  yet  ascertained. 

As  immobility  is  one  of  the  principal  characteristics  of  land,  it 
seems,  and  in  fact  is,  somewhat  inconsistent  to  regard  water  and 
liquid  minerals  as  land.  Here  as  in  many  other  instances  the  law 
is  practical  rather  than  logical,  and  hence  regards  water,  oil,  and 
other  liquid  substances  found  in  or  upon  the  surface  of  the  earth 
as  parts  of  the  earth  in  or  upon  which  they  are  collected  and  in- 
cludes them  in  the  term  land. 

While  liquid  minerals  and  water  are  regarded  as  land  the  law 
recognizes  their  natural  mobility  and  declares  them  to  be  parts  of 
the  particular  tract  of  land  upon  which  they  may  be  temporarily 
located.  The  rule  as  to  ownership  is  modified  by  these  facts. 
The  liquid  mineral  belongs  to  him  upon  or  within  whose  land  it 
is.  As  to  these  minerals  the  ownership  attaches  to  and  vests  in 
the  mineral  itself  so  long  as  it  remains  upon  the  particular  tract 
of  land,  and  if  it  is  taken  from  the  land  and  appropriated  by  the 
owner  his  title  thereto  becomes  fixed  and  permanent.  If,  how- 
ever, the  owner  does  not  appropriate  the  liquid  mineral  while  it 
is  on  his  premises,  but  permits  it  to  pass  off  onto  other  lands,  his 
right  is  lost  and  he  cannot  follow  and  reclaim  the  mineral. 

But  if  a  trespasser  shall  enter  upon  the  land  and  separate  the 
mineral  therefrom  and  seek  to  appropriate  it,  this  appropriation 
enures  to  the  benefit  of  the  owner  of  the  soil  and  the  mineral  so 
taken  into  possession,  is  the  property  of  such  owner  and  the  tres- 
passer is  responsible  to  him  therefor.  The  liquid  mineral  was 
actually  separated  from  the  soil  at  a  time  that  it  was  the  property 
of  the  owner  of  that  particular  tract  of  land  and  was  reduced  to 
possession  on\  his  premises  and  its  passage  on+n  the  lands  of 
adjacent  proprietors  was  thus  prevented.  It  thereby  became  the 
subject  of  ownership,  not  as  a  part  of  the  realty,  but  as  a  distinct 
commodity,  and  having  belonged,  at  the  time  of  its  separation,  to 
the  owner  of  the  land  from  which  it  was  taken,  his  title  continues. 

The  rules  which  govern  the  adjustment  of  the  rights  of  parties 


380  AMERICAN  ELEMENTARY  LAW. 

and  the  measure  of  damage  vary  with  the  varying  circumstances 
of  the  particular  cases. 

The  rules  governing  ownership  of  water  are  peculiar  and  are 
reserved  for  special  treatment. 

Fixtures. — The  most  interesting  and  difficult  questions  on  this 
subject  arise  in  connection  with  fixtures.  These  are  structures, 
or  annexations,  to  the  soil  which,  from  their  nature,  may  or  may 
not  be  permanent  or  immovable.  Whether  they  are  part  of  the 
freehold  depends  mainly  on  the  intent  with  which  they  are  put 
on  the  land.  In  most  cases  this  intent  is  a  matter  of  fact,  to  be 
determined  by  all  the  circumstances;  in  a  few  cases  it  is  pre- 
sumed by  law.  The  tests  to  be  applied  are  very  tersely  given  by 
Judge  Moore,  in  Hutchins  v.  Thompson  (46  Texas,  551).  He 
says:  "The  criterion  to  determine  whether  a  chattel  has  become 
an  immovable  fixture  consists  in  the  united  application  of  the 
following  tests : 

"  (1)  Has  there  been  a  real  or  constructive  annexation  of  the 
articles  in  question  to  the  realty  ? 

"  (2)  Was  there  a  fitness  or  adaptation  of  the  articles  to  the 
and  purpose  of  the  realty  with  which  it  is  attached  ? 

"  (3)  Was  it  the  intention  of  the  party  making  the  annexation 
that  the  chattel  should  become  a  permanent  accession  to  the  free- 
hold, this  intention  being  inferable  from  the  nature  of  the  article, 
the  relations  and  situations  of  the  parties  interested,  the  policy 
of  the  law  in  respect  thereto,  the  mode  of  annexation,  and  the 
purposes  and  uses  for  which  the  annexation  was  made?" 

Of  these  tests,  prominence  is  given  to  the  intention  of  the  party 
to  make  the  article  a  permanent  accession  to  the  freehold;  the 
others  are  chiefly  of  value  as  evidence  of  this  intention. 

When  the  annexation  is  made  by  one  who  is  unconditional 
owner  both  of  the  land  and  of  the  thing  annexed  the  question  is 
almost  exclusively  one  of  intent  in  fact. 

When  annexation  is  made  by  one  who  has  only  a  conditional 
title  in  the  land  and  absolute  title  in  the  chattel,  his  right  of 
possession  of  the  realty  being  derived  from  another,  and  being 
dependent  upon  the  performance  by  him  of  some  act  which  he 
may  or  may  not  do,  as  he  should  prefer,  the  intent  to  perma- 
nently annex  and  make  part  of  the  freehold  is  conclusively  pre- 
sumed in  favor  of  the  party  having  the  reversionary  interest.    If 


PROPERTY.  381 

such  conditional  interest  shall  cease  because  of  failure  of  party  in 
possession  to  perform  the  act  necessary  to  perfect  his  title,  or 
continue  it,  the  chattel  will  go  with  the  land,  as  in  case  of  party 
in  possession  under  a  conditional  contract  of  purchase,  either 
precedent,  as  where  purchase  money  is  not  paid,  or  subsequent,  as 
where  defeasance  is  based  on  breach  of  condition  subsequent. 

"Where  the  attachment  is  made  by  a  tenant,  he  may  remove,  but 
he  must  exercise  his  right  during  the  term.  This  is  particularly 
true  as  to  trade  fixtures.  There  is  a  difference  of  opinion  in  case 
of  renewal  of  the  lease  after  annexation,  when  no  right  of  re- 
moval is  reserved  in  the  second  lease.  The  larger  number  of 
authorities  hold  that  the  right  is  lost,  but  quite  a  number  hold 
the  other  view. 

Where  the  annexation  is  made  by  a  trespasser,  if  it  be  perma- 
nent in  its  nature  and  attached  to  the  soil,  either  directly,  as  a 
house,  or  indirectly,  by  attaching  to  a  house  already  built,  the 
law  conclusively  presumes  that  it  is  an  immovable  fixture  and 
declares  it  to  be  a  part  of  the  land.  If  the  trespasser  making 
the  attachment  knew  that  he  was  such,  the  owner  of  the  land  gets 
the  attachment  without  any  liability  for  compensation.  If  the 
trespasser  had  good  reason  to  believe  and  did  believe  that  he  was 
the  owner  of  the  premises  when  he  made  the  improvement,  the 
attachment  nevertheless  belongs  to  the  owner  of  the  land,  but  in 
equity,  and  in  many  States  under  special  statutes,  the  owner  is 
required  to  make  just  compensation  for  the  benefit  which  he  re- 
ceives from  the  improvement.  There  are  numerous  equitable  and 
statutory  rules  governing  these  adjustments  but  the  fundamental 
doctrines  are  as  above  stated. 

Easements. — So  far  we  have  considered  corporeal  things  real. 
There  are  certain  rights  issuing  out  of  and  exercisable  over  or  in 
connection  with  land  which  are  also  regarded  as  real.  The  most 
important  of  these,  in  modern  law,  are  known  as  easement*. 

A  proper  definition  of  an  easement  is  difficult  to  give.  Mr. 
Cooley  does  not  attempt  it.  Mr.  Bishop  (Non-Contract  Law, 
862)  says:  "The  terms  easement  and  servitude  are  correlative, 
the  easement  being  a  right  in  the  nature  of  an  estate,  and  the 
servitude  its  corresponding  burden.  More  exactly,  an  easement 
is  an  incorporeal  hereditament,  or  chattel  interest,  attached  to 
the  person  of  an  individual,  or  the  public,  or  the  land  of  either,  in 


382  AMERICAN   ELEMENTARY   LAW. 

another's  land;  a  servitude  is  the  burden  imposed  on  the  land  by 
the  easement.  There  can  be  no  easement  without  a  servitude,  or 
servitude  without  an  easement."  The  estate  entitled  to  the  ease- 
ment is  called  the  dominant  estate ;  that  subject  to  it,  the  servient 
one. 

In  6  American  and  English  Encyclopaedia  of  Law,  139,  it  is 
said:  "An  easement  is  a  privilege,  without  profit,  which  the 
owner  of  one  neighboring  tenement  hath  of  another,  existing  in 
respect  of  the  several  tenements,  by  which  the  servient  owner  is 
obliged  to  suffer,  or  not  to  do,  something  on  his  own  land,  for  the 
advantage  of  the  dominant  owner." 

Neither  of  these  definitions  is  entirely  satisfactory,  though  each 
is  fairly  accurate.    I  suggest  the  following : 

An  easement  is  an  incorporeal  right  which  the  public  or  an  in- 
dividual has  in  the  use,  control,  or  enjoyment  of  lands  belonging 
to  another  which  does  not  give  the  right  of  possession  or  profit. 

Easements  must  be  distinguished  from  "profits."  which  give  a 
right  to  take  or  remove  the  soil  itself,  or  jsomething  growing 
thereon,  and  from  leasehold  estates  which  entitle  the  holder  to 
possession.  The  term  easement  is  restricted  to  those  incorporeal 
rights  which  relate  to  the  use  of  the  property  of  another  which  do 
not  contemplate  or  require  possession  of  the  land,  as  a  right  to 
pass  over  it  in  a  certain  way,  for  a  certain  purpose,  or  at  a  cer- 
tain time;  or,  to  such  as  constitute  restrictions  on  the  owner's 
right  to  use  for  certain  purposes  or  in  certain  way,  and  yet  give 
no  right  of  entry  or  use  by  the  party  enjoying  the  right,  as  a 
limitation  on  the  right  of  the  owner  to  conduct  certain  businesses 
on  the  land  not  amounting  to  nuisances,  or  permit  another  to  do 
so;  or  to  the  right  to  interfere  with  or  prevent  the  passage  of 
water,  or  light,  or  air  from  the  premises  of  one  owner  onto  those  of 
another. 

The  easement  may  be  in  a  person,  without  reference  to  his  own- 
ership of  land,  in  which  it  is  called  an  easement  in  gross;  or  it 
may  exist  in  regard  to  or  in  behalf  of  one  tract  of  land  on  or 
against  another  tract,  in  which  case  it  is  called  an  easement  ap- 
purtenant. 

Easements  appurtenant  can  only  exist  as  between  two  or  more 
tracts  of  land.  The  tract  in  favor  of  which  the  easement  exists  is 
known  as  the  dominant  estate,  the  tract  subject  to  the  easement  is 


PROPERTY.  383 

known  as  the  servient  estate.  In  some  instances,  the  one  estate  is 
dominant  from  one  point  of  view  and  servient  from  another. 
Take  the  case  of  the  respective  rights  and  duties  of  owners 
of  adjacent  tracts  of  land  crossed  by  the  same  running  stream. 
If  we  consider  the  matter  from  the  point  of  view  of  the  upper 
proprietor's  duty  to  let  the  water  pass  off  his  land  onto  the  lower 
tract,  the  lower  tract  is  the  dominant  and  the  upper  the  servient. 
If,  however,  we  change  the  point  of  view  and  consider  the  duty  of 
the  owner  of  the  lower  tract  to  receive  onto  his  land  the  water 
passing  thereon  from  the  higher  tract,  the  higher  tract  becomes 
the  dominant  and  the  lower  the  servient. 

Easements  appurtenant  run  with  the  land,  that  is,  they  are  so 
attached  thereto  that  they  pass  with  the  land  with  every  change 
of  ownership. 

The  right  to  an  easement  may  be  established  by  showing  an 
express  contract  granting  the  right,  or  facts  from  which  a  grant 
may  be  presumed  or  from  which  title  by  limitation  may  arise.  In 
every  case  of  grant  or  prescription  the  right  depends  upon  the 
grant,  real  or  presumed,  and  its  exercise  must  conform  to  the 
terms  of  the  grant.  If  a  right  of  way  is  expressly  given  across  an 
estate  at  a  particular  place  it  can  be  exercised  nowhere  else.  If 
it  be  for  particular  purposes,  as  to  go  to  mill  or  draw  water  or 
get  wood,  it  is  limited  to  use  for  such  purposes  and  can  not  be 
enlarged  so  as  to  embrace  another  not  fairly  within  the  grant. 
The  same  is  true  of  easements  from  implied  grants,  as  a  way  of 
necessity.  The  party  can  only  claim  a  necessary  way,  not  the 
most  convenient  to  him,  and  this  having  once  been  established, 
must  be  strictly  adhered  to.  And  so  of  prescriptive  rights  of  this 
character.  Here  the  grant  is  presumed  from  a  continued  use  for 
a  fixed  time,  and  use  for  such  time,  in  one  manner,  for  one  pur- 
pose, and  to  one  extent,  will  not  give  right  to  use  in  a  different 
manner  or  for  a  different  purpose  or  to  a  greater  extent.  This  is 
also  true  of  rights  acquired  by  limitation. 

The  infringements  of  these  rights  vary  with  the  nature  of  the 
rights  themselves.  He  who  has  an  easement  in  the  property  of 
another,  in  gross,  or  as  owner  of  the  dominant  estate,  is  entitled, 
in  law  and  equity,  to  its  full  enjoyment.  As  before  said,  his  right 
is  limited  to  the  grant,  real  or  presumed,  and  no  act  or  omission 
not  violative  of  the  right  could  be  a  legal  injury.    The  remedy  is 


384  AMERICAN   ELEMENTARY   LAW. 

damages  for  wrongs  already  done,  and  injunction  against  contin- 
uance, and,  in  proper  cases,  abatement  of  the  physical  conditions 
which  constitute  or  produce  the  infringement  of  the  right. 

Tenures. — In  legal  theory  the  paramount  title  to  all  lands  is  in 
the  sovereign.  Under  the  feudal  system  large  portions  of  land 
were  granted  by  the  king  to  the  higher  order  of  nobility  to  be 
held  by  them  in  consideration  of  their  loyalty  to  him  and  of  serv- 
ices to  be  rendered  to  him  and  to  the  state.  These  nobles  in  turn 
let  the  lands  out  to  others  who  were  to  hold  under  them  and  to 
render  them  fealty  and  service.  After  the  conquest  of  England 
by  William  of  Normandy  many  of  the  lands  in  England  were 
held  under  these  feudal  tenures.  The  basis  of  feudal  tenures  was 
royalty  supported  by  aristocracy,  both  served  by  the  common 
people.  To  perpetuate  this  policy  it  was  necessary  to  have 
large  landed  estates.  To  maintain  this  system  it  was  necessary  to 
establish  very  great  and  mandatory  limitations  upon  the  aliena- 
tion of  land  and  to  limit  its  inheritance  to  one  male  in  the  line  of 
descent.  Each  of  these  ideas  is  repugnant  to  our  American  insti- 
tutions. 

The  colonists  from  England  who  settled  the  Atlantic  Seaboard 
necessarily  brought  with  them  the  English  Common  Law  as  it 
then  existed.  But  it  was  equally  necessary  that  this  Common  Law 
should,  even  at  the  beginning  of  the  settlements,  be  modified 
somewhat  to  suit  American  conditions. 

As  the  colonies  increased  and  prospered  and  became  more  and 
more  self-sustaining,  they  slowly  and  intermittently  made  still 
greater  departures  from  the  inapplicable  portions  of  the  Common 
Law. 

Finally,  when  the  States  revolted  and  established  their  inde- 
pendence, thus  throwing  off  their  aUegiance  to  the  king  of  Eng- 
land, the  collective  people  of  each  state  as  the  sovereign  within 
its  territory  succeeded  to  such  prerogatives  of  royalty  as  survived 
such  radical  changes  in  political  theory  and  governmental  insti- 
tutions. 

Among  these  prerogatives  that  attached  to  the  people  of  each 
State  was  the  sovereignty  of  the  soil  or  the  paramount  title  to  all 
lands  within  its  territory.  All  lands  theretofore  granted  within 
the  boundaries  of  the  respective  States  were,  from  that  time  on, 
hold  en  under  the  State.     All  land  that  had  not  been  granted  to 


PROPERTY.  385 

private  individuals  became  public  domain  and  property  of  the 
State.  Some  of  this,  the  States  continued  to  hold  as  belonging  to 
them  respectively  and  to  grant  to  private  owners  from  time  to 
time  as  the  Legislature  of  each  provided.  Some  of  the  land, 
further  in  the  interior,  which  was  claimed  by  the  States,  was  by 
them  ceded  to  the  United  States  Government. 

Later  the  United  States  acquired  large  territories  by  treaties 
with  different  European  governments  and  Mexico.  The  lands 
thus  acquired  were  some  of  them  granted  to  private  owners  by 
the  United  States  Government,  and  the  paramount  title  to  some 
of  them  was  passed  to  States  created  within  this  territory. 
"When  the  Republic  of  Texas  achieved  its  independence,  it  suc- 
ceeded to  the  former  sovereigns  who  had  exercised  jurisdiction 
over  its  territory,  in  this  right  of  paramount  title  to  the  land. 
Upon  annexation  with  the  United  States  this  sovereignty  over  its 
territory  was  retained  by  Texas. 

From  this  brief  historical  statement  it  is  seen  that  feudal 
tenures  never  obtained  in  any  part  of  the  United  States  and  no 
land  within  the  boundaries  of  the  Union  is  now  held  thereby. 
On  the  contrary  all  tenures  in  the  United  States  are  allodial,  that 
is,  are  derived  from  the  sovereign  either  without  consideration  or 
for  consideration  paid  in  money  or  services.  No  feudal  service  is 
or  could  be  lawfully  exacted  in  return  for  the  grant  of  estates  in 
land.  Almost  universally  the  State  grants  its  land  by  fee  simple 
title.  This  title,  of  course,  is  subject  to  the  powers  of  eminent 
domain  and  of  taxation  and  the  limitations  heretofore  discussed 
as  growing  out  of  the  just  rights  of  others* 

The  State  may,  of  course,  lease  its  lands  or  grant  other  titles 
less  than  the  fee.    This  policy  has  occasionally  been  pursued  by 
some  of  the  States. 
25 


CHAPTER  XX. 

PROPERTY   (CONTD.) 
ESTATES. 

The  word  estate  at  Common  Law  is  defined  as  "The  degree, 
quantity,  nature,  and  extent  of  interest  which  a  person  has  in 
real  property"  (Bouvier's  Law  Dictionary,  Estate).  It  signifies 
the  extent  and  nature  of  the  owner's  right  in  the  thing  owned. 

In  its  earlier  use  it  was  limited  to  interests  in  real  property  but 
now  is  applied  to  interest  or  ownership  in  chattels. 

It  extends  from  the  smallest  right  recognized  by  law  in  things 
to  full  ownership.  Having  so  broad  a  range,  it  of  necessity  in- 
cludes interests  of  a  great  many  different  kinds.  These,  in  their 
various  distinctions,  cannot  be  taken  up  in  detail  in  a  work  like 
this.  A  few  of  the  more  important  classes  of  estates  in  real  prop- 
erty will  be  enumerated  and  partially  defined. 

Different  Kinds  of. — An  estate  in  fee  simple  is  the  largest  pos- 
sible interest  and  fullest  ownership  that  one  can  have  in  land.  It 
exists  wherever  the  estate  enures  to  the  benefit  of  the  present 
holder  and  his  legal  heirs  without  condition  or  limitation.  Such 
an  estate  is,  by  its  nature,  inheritable;  still  the  entire  right  is  re- 
garded as  in  the  present  owner  and  he  may  alienate  the  land  and 
convey  to  the  grantee  the  entire  fee.  He  may  carve  out  of  it  and 
convey  any  smaller  estate  not  prohibited  by  law. 

A  fee-tail  is  an  inheritable  estate  which  descends  only  to  the 
heirs  of  the  body  of  the  decedent  or  to  such  of  them  as  come 
within  the  terms  of  the  grant  by  which  the  estate  is  created.  The 
holder  of  an  estate  tail  could  not  alienate  it  so  as  to  cut  off  the 
rights  of  the  designated  heirs.  These  estates  are  forbidden  by 
the  constitutions  of  many  of  the  States  of  the  Union. 

Estate  of  freehold  includes  all  estates  in  land  of  inheritance  or 
for  life  except  copyholds  and  leaseholds. 

Copyhold  estates  do  not  exist  in  America. 


PROPERTY.  387 

Leasehold  estates  are  estates  created  by  a  contract  known  as  a 
lease  under  which  the  lessee  is  entitled  to  the  benefits  and  posses- 
sion of  the  land  for  a  period  specified  in  the  contract.  The  term 
may  be  either  for  life  or  for  a  designated  period  of  time  or  dur- 
ing the  pleasure  of  one  or  both  parties. 

Estates  for  years  are  leasehold  estates  for  a  definite  or  limited 
time. 

Estates  for  life  are  estates  which  cannot  extend  beyond  the  life 
or  lives  of  designated  persons.  In  no  event  is  such  an  estate  in- 
heritable. If  it  be  limited  expressly  to  the  life  of  the  tenant  it 
terminates  upon  his  death.  If  it  be  limited  to  the  life  of  another 
or  others  by  its  express  terms  it  ends  with  the  death  of  the  sur- 
vivor of  those  during  whose  lives  it  was  to  continue.  It  is  also 
limited  by  legal  implication  to  the  life  of  the  tenant.  It  is,  how- 
ever, reckoned  among  the  freehold  estates. 

A  reversion  is  the  right  or  estate  existing  in  one  who  has  a  fee 
.simple  estate  in  land  and  has  conveyed  some  less  estate  to  an- 
other, or  one  who  has  conveyed  the  fee  in  the  land  subject  to  some 
contingency,  to  receive  back  the  full  estate  upon  the  ending  of 
the  less  estate  or  the  happening  of  the  contingency  terminating 
the  estate  in  fee,  which  he  has  conveyed. 

A  remainder  is  a  right  or  estate  in  land  which  is  to  be  enjoyed 
upon  the  termination  of  some  less  estate  created  at  the  same  time 
that  the  remainder  is. 

Reversions  and  remainders  differ  in  that  the  right  to  the  re- 
versions exist  in  him  who  grants  the  less  estate  or  the  contingent 
estate  before  he  makes  the  grant  and  the  estate  simply  returns  to 
him  from  whom  the  less  estate  emanated  while  in  a  remainder  the 
less  estate  and  the  remainder  are  both  created  by  grant  from  a 
common  grantor,  the  remainder  to  take  beneficial  effect  only 
upon  the  expiration  of  the  less  estate. 

Thus,  if  A  owns  a  farm,  and  rents  it  for  ten  years  to  B,  after 
the  ten  years  have  passed  the  farm  will  go  back,  or  revert,  to  A, 
to  his  heirs,  or  to  his  assignees,  that  is,  to  A,  or  to  some  one  hold- 
ing an  estate  derived  from  A,  after  the  renting  of  the  farm.  But. 
if  A,  by  deed,  shall  pass  the  title  to  the  land  to  B  for  ten  years, 
and  after  that  to  C,  the  estates  of  B  and  C  both  being  created  at 
the  same  time,  then  C  would  be  a  remainderman.  The  property 
could  not  revert  to  him,  because  he  never  had  it.    His  only  inter- 


388  AMERICAN   ELEMENTARY   LAW. 

est  in  it  is  an  estate,  the  beneficial  uses  of  which  will  begin  after 
the  ending  of  B's  interest.  There  is  a  great  deal  written  about 
these  different  estates,  and  many  fine  distinctions  are  made  be- 
tween them  and  their  subdivisions,  but  we  can  not  go  into  detail. 

One  of  the  most  important  kinds  of  estates  in  land  is  mort- 
gages. These  are  conveyances  made  by  the  owner,  to  be  void 
upon  payment  of  money  owed  by  the  mortgagor,  or  some  one  in 
whose  behalf  the  mortgage  is  given. 

At  Common  Law,  the  effect  was  to  convey  the  legal  title  to  the 
land  to  the  mortgagee,  to  be  reconveyed,  upon  the  payment  of  the 
money  which  the  instrument  was  given  to  secure.  In  some  States 
the  debt  is  regarded  as  the  principal  thing,  and  the  mortgage  as 
security  for  the  debt ;  so  that,  in  such  States,  whatever  destroys  or 
settles  the  debt,  terminates  the  mortgagee's  right  in  the  land. 

"While  the  mortgage  continues,  and  before  default  in  payment 
of  the  debt,  the  fact  of  the  mortgage  makes  no  difference  in  the 
mortgagor's  right  to  possess  the  land,  and  enjoy  its  revenues.  He 
can  not  rightfully  commit  waste  upon  it,  or  so  deal  with  it  as  to 
diminish  its  value,  and  if  he  is  doing  so  the  mortgagee  can  pre- 
vent him,  by  the  proper  proceedings. 

Upon  default  of  payment,  at  Common  Law,  the  creditor  could 
enter  into  possession  and  take  the  revenues  of  the  property. 
Equity,  however,  relieved  the  harshness  of  this  rule,  by  allowing 
the  debtor  to  come  in,  within  a  reasonable  time,  pay  the  debt  and 
all  proper  charges,  and  redeem  the  land  from  the  mortgage.  This 
is  called  the  Equity  of  Redemption.  The  term  is  also  frequently 
applied  to  the  right  given  to  the  debtor,  by  statute,  in  some  juris- 
dictions, to  come  in,  even  after  the  sale  of  the  land  under  judg- 
ment of  a  court,  and  pay  all  the  debt  and  costs,  and  get  the  land 
back. 

Upon  default  of  payment,  in  those  States  in  which  the  mort- 
gage is  regarded  as  a  mere  incident  to  the  debt  the  mortgagee  can 
not  enter  upon  the  land,  but  must  bring  suit  for  the  debt,  and 
obtain  a  judgment  and  get  a  decree  ordering  the  land  sold  to  pay 
the  debt  and  costs.  This  is  called  a  decree  of  foreclosure.  Even 
after  such  a  decree,  the  debtor  may  pay  the  amount  due  on  it,  at 
any  time  before  the  actual  sale  of  the  land ;  but,  if  it  is  not  paid 
by  that  time  ordinarily  the  interest  of  the  debtor  in  the  land  is 
gone,  and  he  has  no  further  right  to  redeem  it.    Mortgages  must 


PROPERTY.  389 

be  executed  in  the  same  way  and  recorded  just  as  conveyances  of 
land  are. 

It  is  frequently  expensive  to  bring  suit  and  obtain  decree  of 
foreclosure;  and,  to  obviate  this,  the  debtor,  instead  of  giving 
a  simple  mortgage,  as  discussed  above,  may  give  a  mortgage  with 
power  of  sale,  or  a  deed  of  trust.  These  are  instruments,  exe- 
cuted by  a  debtor,  or  some  one  interested  in  him,  conveying  the 
land  for  the  purpose  of  securing  a  debt,  and  authorizing  the 
grantee  in  the  conveyance  to  sell  the  land,  without  the  necessity 
of  suit,  and  to  apply  the  proceeds  to  the  payment  of  the  debts 
secured  by  the  instrument. 

When  the  one  to  whom  the  conveyance  is  made  is  the  creditor, 
the  instrument  is  still  a  mortgage,  but  differing  from  those  just 
discussed,  in  the  power  which  the  mortgagee  has  to  sell  the  prop- 
erty and  pay  the  debt  without  suit.  In  recognition  of  this  differ- 
ence, the  instrument  is  called  a  mortgage  with  power  of  sale. 

When  the  conveyance  is  made  to  a  person  not  the  creditor,  it 
loses  its  distinctive  characteristics  as  a  mortgage ;  and,  as  the  title 
conveyed  is  not  an  absolute  one,  but  one  which  the  grantee  holds 
for  the  purpose  of  securing  the  payment  of  the  debt  to  a  third 
party,  it  is  called  a  deed  of  trust.  The  instrument  gives  to  the 
trustee  the  right  to  sell  the  land,  on  the  terms  and  in  the  manner 
designated  in  the  deed ;  and  hence,  there  is  no  necessity  to  sue  to 
enforce  payment  from  the  land.  The  trustee  sells  it  in  accord- 
ance with  the  provisions  of  the  instrument. 

Even  when  the  security  takes  this  form,  the  debtor  in  some 
States,  has  the  right  to  the  use  and  profits  of  the  land,  not  only 
before  default  in  payment,  but"  afterward  until  the  sale  is  actu- 
ally made,  and  payment  at  any  time  before  the  sale  is  completed 
will  destroy  the  power  given  in  the  instrument,  and  save  the 
property  to  the  debtor. 

If  the  one  authorized  to  sell  shall  refuse  or  neglect  to  do  so,  or 
shall  be  incapacitated  from  so  doing,  the  power  can  not  be  exe- 
cuted by  any  other  person,  unless  the  instrument  provide  some 
method  of  substituting  another  to  act,  and  this  method  has  been 
followed.  Otherwise,  the  creditor  must  sue  and  obtain  decree  of 
foreclosure. 

The  effect  of  sale,  under  a  properly  executed  power,  or  under  a 
decree  of  foreclosure,  is  to  pass  to  the  purchaser  of  the  land  the 


390  AMERICAN   ELEMENTARY   LAW. 

title  and  estate  of  the  mortgagor  therein  at  the  date  the  mortgage 
or  deed  of  trust  was  given,  or  at  any  time  thereafter ;  so  that,  if  the 
debtor  has  sold  it,  since  giving  the  mortgage,  the  purchaser  at  the 
sale  made  to  pay  the  debt,  will  take  title  superior  to  that  of  the 
one  purchasing  from  the  mortgagor,  unless,  of  course,  the  latter 
were  an  innocent  purchaser,  without  notice  and  for  value. 

Estate  by  curtesy  is  the  life  estate  which  a  husband  has  at 
Common  Law  in  the  lands  of  which  his  wife  was  seised  either  in 
fee-simple  or  in  fee-tail  during  the  coverture.  It  is  dependent 
upon  the  fact  of  issue  capable  of  inheriting  the  land  having  been 
bora  to  them  during  coverture. 

There  are  a  number  of  different  kinds  of  dower  at  Common 
Law.  The  most  frequent  was  that  known  as  dower  by  Common 
Law.  This  is  substantially  the  only  kind  that  exists  in  the  United 
States. 

Dower' by  Common  Law  is  a  life  interest  which  the  wife  has  in 
a  third  part  of  all  the  lands  and  tenements  of  which  her  husband 
was  seised  of  an  inheritable  estate  at  any  time  during  the  cover- 
ture and  which  any  issue  she  might  have  had  might  by  possibility 
have  inherited. 

Dower  does  not  exist  in  a  number  of  the  States  of  the  Union. 
In  most,  if  not  all,  of  those  in  which  it  does  exist  it  is  determined 
and  defined  by  statutes  based  upon  and  modifying  the  Common 
Law  as  just  stated. 

The  foregoing  comprise  the  different  lands  of  interests  known 
to  the  Common  Law  which  are  of  the  most  practical  importance 
at  this  time.  It  is  apparent  that  almost  any  one  of  these  estates 
may  be  vested  in  one  person  to  the  exclusion  of  all  others,  or  that 
several  persons  may  be  concurrently  interested  therein.  Of  the 
latter  kind  of  estates  the  three  most  important  are  estates  in 
common,  estates  in  coparcenary,  and  estates  in  joint  tenancy. 

Estates  in  common  are  estates  in  which  two  or  more  persons 
hold  joint  possession  of  property  though  their  rights  depend 
upon  several  and  distinct  titles. 

Estates  in  coparcenary  exist  when  two  or  more  persons  have  or 
are  entitled  to  joint  possession  of  property  under  the  same  title 
derived  at  the  same  time  by  inheritance.  Their  shares  or  inter- 
ests need  not  be  equal. 

Estates  of  joint  tenancy  are  estates  acquired  by  purchase  and 


PROPERTY.  393 

under  which  the  several  tenants  hold  equal  shares.  The  word 
purchase  here  is  used  in  its  Common  Law  signification,  including 
every  means  of  acquisition  except  by  inheritance.  The  most  im- 
portant peculiarity  of  joint  tenancy  is  the  doctrine  of  survivor- 
ship under  which  upon  the  death  of  each  tenant  the  share  previ- 
ously owned  by  him  passes,  not  to  his  estate  or  heirs,  but  to  his 
joint  tenants. 

The  distinctions  between  these  several  estates  are  not  nearly  so 
important  in  many  of  the  American  States  at  this  time  as  they 
formerly  were,  as  the  law  of  such  States  has  repudiated  the  doc- 
trine of  survivorship  among  joint  tenants  and  now  practically 
deals  with  all  persons  having  concurrent  interests  in  property  as 
tenants  in  common. 

Real  and  Personal  Property. 

Among  the  legal  terms  in  very  frequent  use  are  real  estate  and 
real  property  on  the  one  hand  and  personal  property,  personalty 
and  chattels  on  the  other. 

Of  these  the  first  two  are  used  as  practically  synonymous.  This 
is  true  also  of  the  last  three. 

Technically  there  are  supposed  to  be  nice  shades  of  difference 
between  the  terms  in  each  group.  Practically  it  may  be  less  con- 
fusing to  deal  with  those  in  each  group  as  having  the  same  mean- 
ing. 

Real  Estate. — Each  of  the  words  in  this  phrase  has  significance. 
The  first  indicates  the  nature  of  the  thing  to  which  the  phrase 
may  be  applied;  the  second  suggests  the  idea  of  ownership  or 
interest,  though  it  does  not  indicate  its  character.  To  under- 
stand the  phrase  we  must  take  in  both  of  these  points  of  view. 

The  word  real,  as  used  at  Common  Law,  in  nearly  all  instances 
applies  to  land  and  suggests  its  two  leading  characteristics,  per- 
manency and  immobility.  This  is  true  here,  and  hence  real  estate 
is  never  applied  to  nor  made  to  include  anything  that  is  not  per- 
manent and  immovable,  either  in  fact  or  in  legal  contemplation. 
It  has  been  seen  in  the  discussion  of  things  real  that  the  term 
land  includes  practically  all  things  having  these  qualities,  though 
in  a  few  instances  the  law  attributes  these  qualities  to  things  which 
do  not  in  fact  possess  them.  We  found  also  that  there  are  certain 
rights  incident  to  or  enjoyed  in  connection  with  land  which  are 
immovable.    These  rights  may  or  may  not  be  permanent.    In 


392  AMERICAN   ELEMENTARY   LAW. 

those  eases  in  which  they  are  permanent,  they  are  classed  among 
things  real. 

The  subject  matter  of  real  estate  is  therefore  land,  permanent 
fixtures  attached  thereto,  and  permanent  rights  incident  to,  issu- 
able out  of,  or  enjoyable  in  connection  with  land,  known  as  ease- 
ments, and  certain  other  things,  such  as  deer  in  parks  or  in 
landed  estates,  and  some  others  to  which  the  law  ascribes  the  idea 
of  permanency  and  immobility. 

Passing  over  to  the  nature  of  the  estate  which  the  law  requires 
in  this  connection,  we  find  that  it  must  have  two  characteristics, 
viz.,  inheritability  and  indefiniteness  of  duration.  If  an  estate 
lack  either  of  these  qualities  it  does  not  meet  the  law's  require- 
ment as  to  real  estate. 

"We  may,  therefore,  define  real  estate  or  real  property  as  things 
real  held  by  inheritable  and  indeterminate  title. 

Personal  Property. — It  seems  to  be  the  generally  accepted  rule 
that  all  property  or  estates  which  are  not  real  estate  are  properly 
classed  as  personalty. 

At  one  time  there  was  a  third  class  known  as  chattels  real  but 
this  idea  and  classification  has  lost  favor  and  fallen  into  disuse. 

Personal  property  and  its  synonyms,  personalty  and  chattels 
therefore,  includes  all  things  which  are  not  in  their  nature  either 
in  fact  or  in  theory  of  law  both  permanent  and  immovable.  This 
is  true  without  reference  to  the  nature  of  the  estates  or  title  by 
which  they  are  held.  The  highest  title  known  to  the  law  over  a 
transient  movable  chattel  cannot  be  regarded  as  real  estate. 

These  terms  also  include  all  estates  or  interests  in  things  real 
which  are  not  inheritable  and  must  terminate  at  a  definite  time. 
An  estate  in  land  for  the  life  of  the  owner,  while  it  is  regarded  as 
a  freehold  is  not  real  property.  The  subject  matter  of  the  own- 
ership is  immovable  and  permanent  and  the  estate  is  indeter- 
minate in  duration  but  it  is  not  heritable  and  hence  is  personal 
property  only.  A  leasehold  estate  in  land  for  ninety-nine  years, 
or  a  longer  definite  period,  is  not  real  estate.  The  land  is  real, 
the  estate  is  heritable,  but  its  duration  is  limited  to  a  definite 
period,  hence  it  is  regarded  as  a  chattel  interest. 

Licenses. 

Having  briefly  considered  the  principal  estates  in  land,  we  now 
take  up  the  subject  of  license. 


PROPERTY.  393 

Simple  permission  or  invitation  to  enter  one's  land  is  a  license. 
Licenses  are  not  estates,  and  are  exhausted,  usually,  by  one  user, 
or  may  be  revoked  at  the  will  of  the  owner  of  the  land. 

Licenses  are  of  three  kinds : 

(1)  Those  impliedly  given  by  the  owner. 

(2)  Those  expressly  given  by  the  owner. 

(3)  Those  given  by  law. 

The  first  are  such  as  are  presumed  to  be  given  by  the  owner  of 
the  estate,  in  absence  of  legal  requirement,  and  without  express 
invitation  or  statement,  to  the  licensee.  They  embrace  all  those 
invitations  which  are  presumably  extended  to  members  of  the 
public  to  come  to  the  place  of  business  of  every  man  who  is  con- 
ducting any  business  sustained  by  and  dependent  on  public  pat- 
ronage. This  is  presumed,  as  a  matter  of  course,  from  his  enter- 
ing on  such  business.  The  license  is,  however,  limited  to  the  pur- 
pose for  which  the  business  is  carried  on. 

On  the  same  principle,  persons  are  generally  presumed  to  have 
permission  to  enter  the  private  premises  of  another  to  see  any  of 
the  occupants  socially,  or  on  legitimate  business,  or  to  make 
proper  inquiries  for  information.  This  license  is,  of  course,  much 
more  restricted  than  the  former,  and  it  would  require  much  less 
to  indicate  a  revocation. 

Express  license  exists  in  every  case  in  which  the  owner  of  an 
estate  has  expressly  invited  or  permitted  another  to  come  upon 
his  premises. 

A  mere  license,  whether  express  or  implied,  is  always  revocable, 
unless  the  facts  and  circumstances  are  such  as  to  work  an  estop- 
pel against  the  licensor.  Such  estoppel  arises  when  the  license  is 
coupled  with  a  legal  interest.  Thus,  if  A  owns  a  lot  and  has  a 
quantity  of  hay  stored  on  it,  and  sells  the  hay  to  B  and  gives  him 
permission  to  enter  and  take  it  off,  such  license  is  coupled  with  an 
interest  in  B,  his  right  to  remove  the  hay,  and  is,  therefore,  ir- 
revocable by  A,  but  may  be  lost  by  lapse  of  a  reasonable  time 
without  user.  And  if  A  should  refuse  B  permission,  within  a 
reasonable  time,  to  enter  and  remove  the  hay,  he  would  be  re- 
sponsible for  damages.  If,  however,  instead  of  selling  hay,  or 
other  personal  property,  A  had  sold  B  one  hundred  standing 
trees,  and  given  no  written  permission  to  enter  and  cut  them,  or 
no  written  evidence  of  right,  such  license  would  be  revocable  at 


394  AMERICAN   ELEMENTARY  LAW. 

any  time,  because  the  trees,  being  a  part  of  the  real  estate,  would 
not  pass  by  parol  sale,  and  B  would  acquire  no  legal  right  or  title 
to  them,  and  would  not  have  acquired  any  legal  interest,  under 
the  license  to  enter. 

A  parol  license  to  one  to  enter  and  erect  improvements  on  land 
and  use  them  for  a  specified  time,  will  prevent  the  entry  from 
being  tortious,  but  it  is  revocable,  even  though  the  licensee  has, 
with  the  knowledge  of  the  licensor,  expended  large  sums  of 
money  on  the  improvements,  and  they  are  permanent  in  their 
nature.  The  right  to  use  and  enjoy  the  land  of  another  in  such 
manner  can  only  be  acquired  by  contract  in  writing,  and  parol 
permission  can  not  be  enforced. 

Licenses  by  Law. — In  a  few  cases  the  law  gives  the  right  to 
enter  the  lands  of  another. 

(1)  In  case  of  fire  one  may  enter  upon  the  premises  burning  to 
put  out  the  fire,  or  he  may  enter  on  the  adjoining  premises, 
though  belonging  to  another,  for  the  purpose  of  fighting  the  fire. 

(2)  "Where  a  public  highway  is  obstructed,  travelers  may  cross 
the  premises  adjoining  without  responsibility,  provided  they  do 
no  more  injury  than  is  reasonably  necessary. 

(3)  In  some  States  in  case  of  preliminary  survey  of  lines  of 
railroad  entry  may  be  made  without  liability. 

(4.)  An  officer,  having  process,  may  enter  the  premises  of  an- 
other to  serve  it.  In  case  of  felony,  breach  of  the  peace,  or  search 
warrant,  he  may  break  down  the  door,  if  necessary,  but  he  cannot 
do  so  to  serve  other  process. 

Trespass  ab  Initio. — An  officer  entering  premises  to  serve 
a  warrant  or  seizing  or  taking  possession  of  property  under  a 
warrant  is  justified  in  obeying  the  command  contained  in  the 
writ.  If,  however,  he  should  go  beyond  the  authority  conferred 
by  the  writ  and  perform  acts  not  covered  thereby,  or  if  having 
entered  upon  lawful  obedience  to  the  process  he  shall  fail  to  do 
what  the  writ  requires,  he  loses  any  benefit  from  the  writ  and  is 
regarded  in  law  as  a  trespasser  from  the  beginning. 

Thus,  an  officer  has  a  writ  commanding  him  to  seize  and  sell 
property  belonging  to  a  debtor  named  therein  and  pay  the  pro- 
ceeds over  to  the  judgment  creditor.  If  he  shall  seize  the  prop- 
erty and  sell  it  and  pay  the  money  over  as  directed  by  law  he  is 
not  responsible  for  the  fact  that  the  property  brought  less  than 


PROPERTY.  395 

its  real  value  at  the  legally  conducted  sale.  But  if  he  takes  the 
property  and  sells  it  and  retains  the  money  himself  this  breach  of 
legal  duty  makes  him  a  trespasser  from  the  beginning  and  he  is 
responsible,  not  for  what  the  property  brought  at  the  sale  under 
the  process,  but  for  the  full  market  value  at  the  time  and  place 
at  which  he  took  possession  of  it. 

Fences. — An  important  matter  in  connection  with  the  owner- 
ship of  land  and  of  living  animals  is  shall  the  owner  of  the  land 
protect  it  from  intrusion  by  animals,  or  shall  the  owner  of  the 
animals  prevent  them  from  intruding  upon  the  lands  of  others? 
At  Common  Law  the  owner  of  the  animal  was  required  to  re- 
strain it,  and  if  he  permitted  or  caused  it  go  upon  the  lands  of 
another  he  was  responsible  for  the  trespass.  In  about  half  the 
States  o£  the  Union  this  Common  Law  rule  still  obtains.  In  the 
others  it  has  either  been  abolished  by  statute  or  has  been  disre- 
garded as  inapplicable  to  the  local  conditions.  In  these  latter 
States  the  owner  of  land  must  fence  it  so  as  to  keep  stock  off, 
otherwise  he  cannot  recover  any  damage  for  entry  by  an  animal 
not  directly  attributable  to  the  conduct  of  the  owner.  Even  in 
these  States,  however,  if  the  owner  of  the  animal  purposely  causes 
it  to  go  upon  the  land  of  another  without  the  latter 's  consent,  ex- 
press or  implied,  he  thereby  becomes  a  trespasser  and  liable  as 
such. 

We  may,  therefore,  say  that  at  Common  Law  and  in  about  half 
the  States  of  the  Union  a  fence  is  a  barrier  or  obstruction  to  keep 
animals  in  and  in  the  other  States  of  the  Union  a  fence  is  a  bar- 
rier or  obstruction  to  keep  animals  out. 

Rights  in  Water. 

Rights  in  water,  or  riparian  rights,  as  they  are  frequently 
called,  are  of  sufficient  importance  and  interest  to  warrant  a 
brief,  separate  treatment. 

The  law  recognizes  three  kinds  of  water:  Subterranean,  Sur- 
face, and  in  Streams.  The  rules  governing  each  of  these  are  dif- 
ferent. 

Subterranean  Water. — These  are  waters  in  the  ground,  which 
do  not  come  out  through  natural  openings,  but  are  reached  by 
excavations  of  some  sort.  The  depth  or  manner  of  excavation  is 
not  material,  provided  the  opening  is  an  artificial  one,  and  the 
water  is  obtained  only  through  that  means  or  is  a  natural  one 


396  AMERICAN   ELEMENTARY   LAW. 

from  -which  water  does  not  flow.  There  is  great  practical  differ- 
ence in  the  different  excavations  in  their  depth,  size,  and  manner 
of  making;  but  so  long  as  the  water  is  and  remains  strictly  sub- 
terranean, there  are  no  legal  differences  growing  out  of  these 
varying  physical  conditions. 

A  man  may  dig  his  well  on  his  own  land,  and  use  the  water 
from  it  for  any  purpose,  not  in  itself  unlawful,  although  it  may 
result  in  the  deprivation  of  his  neighbor.  Thus,  if  one  have 
a  well  on  his  land  which  furnishes  him  an  ample  supply  of  water, 
and  the  owner  of  an  adjacent  tract  digs  a  well  and  obtains  water 
of  just  the  same  kind,  and  the  use  of  the  latter  well  is  followed  by 
failure  of  the  former,  no  liability  attaches  to  the  digger  of  the 
second  well. 

The  reason  usually  given  for  this  is  that  the  failure  of  the  first 
well  is  not  the  direct  and  proximate  result  of  the  digging  of  the 
second.  In  the  first  place,  it  is  by  no  means  sure  that  this  was,  in 
fact,  the  cause ;  but,  even  if  the  conditions  were  such,  after  the 
second  well  was  dug,  as  to  make  this  probable,  or  even  certain,  yet 
it  would  not  follow  that  this  actual  result  should  have  been  fore- 
seen by  a  reasonably  prudent  man  as  a  probable  result.  The 
source  of  the  underground  supply  of  water  can  not,  ordinarily, 
be  known,  and  usually  one  would  not  have  any  good  reason  to  be- 
lieve that,  by  digging  the  second  well,  the  first  would  be  injured, 
and  the  law  judging  the  Tightness  of  conduct  by  the  conduct  it- 
self, and  its  probable  results,  does  not  hold  it  unlawful  because  it 
afterwards  transpires  that  it  has  resulted  in  unforeseen  injury  to 
another.    This  is  practically  the  doctrine  announced  in  the  cases. 

It  sometimes  happens  that  one,  in  excavating  for  water,  finds 
such  a  supply  that  it  rises  through  the  opening  and  flows  out  over 
the  surface  of  the  ground.  These  are  called  artesian  wells.  So 
far  as  the  use  of  the  water  thus  obtained  is  concerned,  the  rules 
of  law  seem  to  be  the  same  as  in  regard  to  other  wells,  but  an  addi- 
tional cause  of  difficulty  arises :  What  is  to  be  done  with  the  sur- 
plus water  ?  Must  the  man  who  has  brought  it  up  take  care  of  it, 
or  may  he  let  it  go  ?  If  he  must  care  for  it,  for  how  long,  and  to 
what  extent? 

The  weight  of  authority  is  that  he  must  care  for  it,  either 
by  confining  it  on  his  own  premises  in  such  a  manner  as  not  to  in- 
jure otb*«*s,  or  by  securing  for  it  a  passage  to  some  ancient  water 


PROPERTY.  397 

course  and  emptying  it  there.  This  must  be  a  stream  having  a 
bed  and  a  channel  sufficient  to  carry  off  the  aggregate  of  its  nat- 
ural supply  and  that  coming  from  the  well.  For  inundation  and 
other  injuries  resulting  from  the  flow,  before  it  safely  empties 
into  the  stream,  the  digger  of  the  well  is  responsible. 

Surface  Water. — This  includes  all  water  falling  as  rain,  sleet, 
or  snow,  before  it  has  found  its  way  into  the  channel  of  a  water 
course.  This  is  called  surface  water,  so  long  as  it  is  spread  out 
over  the  surface  of  the  ground,  and  until  it  reaches  some  running 
stream  and  mingles  with  its  waters.  If  it  has  run  down  into  low 
places  or  ravines  which  are  usually  dry,  it  is  still  surface  water 
and  any  proprietor  of  land  has  the  right  to  prevent  its  coming 
onto  his  land,  even  if  in  doing  so  he  cause  it  to  injure  another. 
He  does  not  owe  the  duty  of  receiving  it  from  the  adjoining  land. 
His  right,  however,  is  limited  to  a  refusal  to  receive.  If  he  once 
permits  it  to  come  upon  his  land  he  cannot  thereafter  obstruct  it 
on  his  land  so  as  to  throw  it  back  upon  the  land  of  the  upper  pro- 
prietor. 

The  foregoing  are  the  doctrines  of  the  Common  Law  and  obtain 
generally  in  the  United  States  except  in  those  States  which,  either 
by  statutes  or  by  the  action  of  their  courts,  have  followed  practi- 
cally the  rules  of  the  Roman  Law  or  modifications  of  these  rules. 

In  a  number  of  States  there  are  statutes  regarding  surface 
water  regulating  the  rights  of  particular  classes  of  persons,  as, 
for  instance,  railroad  companies  in  the  building  of  their  tracks, 
etc. 

Water  in  Streams. — The  rules  of  law,  as  to  this  third  class  of 
waters,  differ  materially  from  those  announced  above,  and  require 
special  treatment. 

A  water  course,  as  the  words  are  used  in  this  connection,  has 
been  defined  as  "A  stream  usually  flowing  in  a  particular  direc- 
tion, though  it  need  not  flow  continually.  It  may  sometimes  be 
dry.  It  must  flow  in  a  definite  channel  having  a  bed,  sides  or 
banks,  and  usually  discharges  itself  into  some  other  stream  or 
body  of  water. ' ' 

It  will  be  observed  that  the  water  supply  need  not  be  sufficient 
to  cause  the  stream  to  flow  all  the  time.  It  must  flow  habitually, 
though  not  necessarily  uninterruptedly.  There  must  be  a  definite 
channel,  that  is,  a  bed  or  place  where  the  water  passes  along  over 


398  AMERICAN   ELEMENTARY   LAW. 

the  same  depression  or  lower  surface,  which  is  bounded  or  limited 
by  ascertained  and  definite  sides  or  banks.  When  these  facts  con- 
cur, the  water  thus  confined  and  seeking  a  regular  outlet  is 
a  water  course  or  stream.  Water  standing  in  a  definite  depres- 
sion, and  not  flowing,  is  not  a  stream.  Water  flowing  in  a  defined 
channel  is  not  necessarily  a  stream,  as  surface  water  after  a  rain. 
Sometimes  there  is  a  well  defined  channel,  but  no  water,  except 
immediately  after  rains ;  again,  there  are  channels  down  which 
water  flows  frequently,  but  not  continuously.  How  often  is  it  to 
run,  how  long  during  each  year?  This  must  be  answered  from 
facts  in  each  case.  If  there  be  a  well  defined  channel  down  which 
water  passes  habitually  it  is  enough,  though  it  may  sometimes  be 
dry.  If,  however,  it  is  usually  dry,  though  water  flows  in  it  occa- 
sionally, it  is  not  a  stream. 

The  water  passing  in  these  streams  is  not  owned  by  anyone. 
The  proprietors  of  the  land  crossed  by  or  bordering  on  the  stream 
have  legal  rights,  in  its  use,  but  have  no  property  in  the  water 
itself.  These  rights,  like  all  others,  have  their  correlative  duties, 
and  the  proprietors  of  the  several  estates  must  have  regard  at  all 
times  to  the  obligations  under  which  each  rests  to  the  other.  All 
persons  who  own  land  along  a  stream  are  co-proprietors  in  its  use. 

These  uses  are  of  two  kinds :  domestic  or  natural  on  the  one 
hand,  and  artificial  or  commercial  on  the  other. 

As  to  the  first,  the  right  of  use  is  very  extensive,  and  the  pro- 
prietor who  first  gets  access  to  the  water  lawfully,  may  completely 
exhaust  it,  in  these  natural  or  domestic  uses,  without  incurring 
liability  in  so  doing-. 

It  is  not  so  with  the  second,  artificial  or  commercial  use.  Here 
no  one  has  an  exclusive  privilege.  The  upper  proprietor  can  use 
it  for  these  purposes,  provided,  after  his  use,  he  permit  it  to  leave 
his  land  at  the  same  place,  in  the  same  quantity  and  of  the  same 
quality,  that  it  would  have  done  but  for  such  use.  It  is  apparent 
that  the  rights  and  liabilities  of  the  parties  vary  greatly,  as  the 
use  made  of  it  is  of  the  one  or  the  other  class.  It  therefore  be- 
comes important  to  understand  what  uses  fall  in  each  class. 

Domestic  or  natural  purposes  embrace  drinking  purposes  for 
one's  family  and  his  own  domestic  animals,  culinary  purposes  and 
washing,  and  all  the  uses  about  one's  premises  necessary  to  sus- 
tain life. 


PROPERTY.  399 

Artificial  and  commercial  uses  are  all  those  in  which  water  is 
not  used  directly  to  sustain  life  or  give  comfort,  but  as  a  means  of 
pecuniary  profit,  or  indirect  means  of  comfort.  This  seems  to  be 
the  line  of  separation. 

It  works  out  different  results  in  different  localities.  It  seems 
to  be  considered,  everywhere,  that  the  uses  mentioned  under  the 
head  of  domestic  purposes  are  such,  and  that  for  any  of  these  pur- 
poses the  upper  proprietor,  or  one  first  getting  lawful  access  to 
the  water,  may  use  it,  to  the  entire  exhaustion  of  the  supply. 

In  some  of  the  Northeastern  States  running  mills  and  factories 
seem  to  be  necessary  to  support  life,  and  therefore  are  called 
domestic,  or  natural,  and  irrigation  there  is  called  commercial,  or 
artificial;  while  in  the  Northwest  the  holdings  are  just  the 
reverse,  and  running  factories  and  mills  are  held  to  be  artificial 
uses  and  irrigation  a  natural  use. 

Conveyances. 

Form. — It  is  a  settled  rule  of  law  in  the  United  States  that 
transfers  of  land,  or  any  interest  or  estate  in  it  for  any  consider- 
able length  of  time,  must  be  in  writing,  and  signed  by  the  party 
attempting  to  convey.  In  many  States,  the  instrument,  to  be  a 
complete  deed,  must  be  signed  in  the  presence  of  two  witnesses,  or 
acknowledged  before  some  duly  authorized  officer;  and,  in  some 
States,  it  must  be  sealed.  The  deed  should  clearly  identify  the 
parties  to  it,  both  grantor  and  grantee,  should  accurately  and  cor- 
rectly describe  the  property  conveyed,  and  the  nature  and  extent 
of  the  estate,  or  interest,  transferred. 

The  length  of  time  for  which  land  may  be  leased  by  parol  dif- 
fers in  the  different  States.  There  are  differences,  also,  as  to 
whether  contracts  or  covenants  incident  to  the  sale  of  land,  such  as 
warranty  of  title,  etc.,  should  be  in  writing. 

It  is  an  agreed  rule  of  construction  of  grants  and  deeds  that  a 
deed  calling  for  a  public  way  or  a  nonnavigable  stream  conveys 
title  to  the  center  of  the  way  or  stream.  This  title  is  subject,  in 
such  case,  to  the  easement  in  use  of  the  way  and  passage  of  the 
water. 

Registration. — The  same  public  policy  that  makes  it  desirable 
that  transfers  of  land  should  be  in  writing  leads  to  some  system 
of  giving  permanent  and  public  evidence  of  the  existence  and 
nature  of  these  transfers.     So,  all  the  American  States  have 


400  AMERICAN   ELEMENTARY   LAW. 

adopted  some  method  of  public  registration  of  land  titles.  These 
differ  in  detail,  but,  in  substance,  are  the  same. 

The  plan,  in  general  terms,  is  as  follows:  A  public  officer 
is  provided  in  each  county,  who  keeps  his  office  in  some  convenient 
place,  usually  the  county  court  house,  who  is  required  to  receive, 
file,  and  copy  into  a  public  record,  all  instruments  conveying  any 
estate  or  interest  in  land  within  his  county,  which  have  been  exe- 
cuted in  the  manner  required  by  law.  He  must  keep  indices  to 
these  records,  both  direct  and  cross.  After  recording  the  original 
instrument,  he  gives  it  back  to  the  owner.  The  time  when  the  in- 
strument becomes  public  record,  under  some  statutes,  is  when  it 
is  filed ;  under  others,  when  it  has  been  indexed.  As  soon  as  it  is 
recorded,  all  persons  are  charged  with  notice  of  its  existence  and 
contents,  so  far  as  it  effects  a  transfer  of  or  encumbrance  on  the 
land,  and  they  must  thereafter  deal  with  that  land  as  if  they  had 
knowledge  of  the  rights  created  by  such  instrument. 

Innocent  Purchasers. — As  the  law,  by  providing  for  the  regis- 
tration of  titles  to  land  and  making  the  record  notice  of  the  rights 
of  all  persons  holding  under  properly  recorded  instruments,  has 
put  it  in  the  power  of  every  man  to  notify  all  others  of  his  rights  in 
any  land  in  which  he  may  have  claim,  evidenced  by  any  convey- 
ance, it  exacts  of  every  one,  having  any  such  interest,  the  duty  of 
giving  notice  of  it,  by  putting  his  evidence  of  right  upon  record ; 
and,  if  he  does  not,  he  subordinates  his  rights  to  the  rights  of  in- 
nocent persons  who,  in  good  faith,  have  acquired  rights  in  the 
land  for  value,  without  any  actual  notice  of  the  rights  of  him  or 
those  who  have  failed  to  make  the  proper  record.  This  is  known 
as  the  doclrme  of  innocent  purchasers. 

Four  things  must  concur  to  constitute  one  an  innocent  pur- 
chaser : 

0)  The  interest  against  which  the  claim  is  set  up  must  be  of 
such  nature  as  to  come  within  the  registration  laws ;  that  is,  such 
an  one  as  could  lawfully  be  placed  upon  record,  or  of  such  nature 
that  it  could  have  been  put  in  such  form. 

(2)  The  subsequent  purchaser  must  not  have  known  of  the 
prior  right  he  is  now  seeking  to  overthrow,  and  the  facts  must  not 
be  such  as  to  have  put  him  upon  inquiry. 

(3)  He  must  have  acted  in  good  faith  in  acquiring  his  interest. 

(4)  He  must  have  paid  value  for  his  claim. 


PROPERTY.  401 

Violation  of  Rights  in  Land. 

Eights  in  land  may  be  invaded  by  unlawful  entry  or  trespass 
upon  it,  or  by  committing  any  act  injurious  to  the  land,  as  by  re- 
moving its  lateral  support ;  or  by  commiting  waste  upon  it ;  or  by 
invading  it  by  noxious  gases,  bad  odors,  noises,  etc. ;  or  by  divert- 
ing from  it  water  to  which  it  is  entitled ;  or  by  any  act  or  omission 
unlawful  in  itself  or  its  direct  consequences,  injuriously  affecting 
such  right ;  or  by  conduct  unlawfully  affecting  the  title.  Whether 
or  not  any  particular  act  injurious  to  a  particular  tract  of  land, 
or  something  pertaining  thereto,  is  a  tort  as  to  any  particular 
person,  of  course  depends  on  such  person 's  relation  to  the  land. 

Unless  the  owner  of  the  fee  has  parted  with  some  less  estate  in 
his  land  to  another,  he  is  entitled  to  its  exclusive  use,  enjoyment 
and  possession,  and  can  maintain  an  action  for  any  unlawful  act 
or  omission  injuriously  affecting  him  in  regard  thereto. 

If  he  has  parted  with  some  less  estate,  the  nature  and  extent  of 
such  estate,  and  the  nature  of  the  injury,  together,  determine 
whether  the  cause  of  action  is  in  him,  or  the  party  having  the  less 
estate. 

Controversies  frequently  arise  between  the  owner  of  the  fee  and 
those  having  a  less  estate,  as  to  their  respective  rights  and  inter- 
ests. Usually  these  estates  are  created  by  contract,  and  the  re- 
spective rights  thereunder  are  matters  of  Contract  Law.  There 
are,  however,  some  questions  as  to  legal  rights  of  landlord  and 
tenant,  arising  in  eases  in  which  the  contract  is  silent,  which  are 
properly  questions  of  Tort  Law. 

One  of  the  most  ordinary  incidents  and  rights  of  ownership  is 
possession,  and  any  unlawful  invasion  of  this  right  gives  a  cause 
of  action  to  him  whose  right  is  disturbed. 

The  same  wrongful  act  may  frequently  result  in  injury  to  sev- 
eral persons.  Thus,  if  A  owns  a  tract  of  land  with  an  orchard  on 
it,  and  rents  the  land  and  the  orchard  to  B  for  a  year,  and  B  goes 
into  possession,  here  the  fruit  from  the  trees  would  go  to  B  for  a 
year,  but  the  interest  and  title  in  the  trees  would  be  in  A,  subject 
to  B  's  present  right.  C  enters  and  cuts  down  the  trees.  This  act 
deprives  B  of  his  growing  fruit  and  A  of  his  trees,  and  each 
would  have  a  cause  of  action.  And  so  in  innumerable  cases,  which 
will  readily  occur  to  you. 
26 


402  AMERICAN   ELEMENTARY   LAW. 

Facts  Proving  Title. 

The  rule  is  ordinarily  stated,  he  who  sues  for  a  trespass  upon 
and  injury  to,  or  the  withholding  from  him  of  land  must  deraign 
title  from  the  sovereignty  of  the  soil  and  recover  on  the  strength 
of  his  own  title.  This  is  true,  when  properly  understood ;  but  it 
is  misleadng,  without  explanation.  One  might  well  understand 
from  it  that  the  plaintiff  in  every  suit  would  be  compelled  to  trace 
his  title  back  to  the  State. 

This  is  unquestionably  the  general  rule,  and  the  plaintiff  must 
always  be  ready  to  do  this,  unless  he  clearly  comes  under  one  or 
the  other  of  the  following  exceptions. 

(1)  If  he  and  the  defendant  both  claim  title  to  the  land,  and 
their  titles  have  a  common  source;  that  is,  if  at  some  time,  since 
the  State  parted  with  its  title,  it  was  held  by  some  one  un- 
der whom  both  plaintiff  and  defendant  claim  to  own,  then  he  need 
go  no  further  back  in  the  chain  of  title  than  the  common  source : 
as,  if  A  once  owned  the  land,,  and  sold  it  to  B,  and  subsequently- 
sold  it  to  C,  B  and  C,  and  all  parties  claiming  under  them,  are 
said  to  deraign  title  from  a  common  source,  A.  In  such  a  case,  in 
a  controversy  between  B  and  C  as  to  this  land,  the  plaintiff  need 
not  do  more  than  show  that  both  claim  under  A,  and  that  his  title 
from  A  is  superior  to  that  claimed  by  the  other  party.  This  he 
may  do  by  introducing  copies  of  the  deeds  of  defendant,  or  the 
deeds  themselves,  if  he  can  produce  them ;  and  such  deeds  are  not 
to  be  taken  as  showing  title  in  the  defendant,  unless  the  defend- 
ant shall  himself  put  them  in  evidence. 

(2)  Where  plaintiff's  title  has  been  acquired  under  the  statute 
of  limitations,  either  by  himself  or  by  some  one  whose  estate  and 
right  he  has.  he  can  recover  without  going  back  of  his  possession, 
except  so  far  as  to  show  the  facts  necessary  to  sustain  his  claim 
under  the  particular  statute  relied  on  by  him. 

(3)  "When  the  plaintiff  was  in  actual  possession  at  the  time  the 
defendant  entered;  such  prior  possession  will  entitle  him  to  re- 
cover against  a  naked  trespasser.  Of  course,  if  the  party  disturb- 
ing the  possession  is  the  owner,  or  holds  under  him,  he  can,  by 
showing  this,  defeat  the  right  based  simply  on  prior  possession 
unaided  by  other  right  or  title. 

This  doctrine  is  limited  to  the  actual  possession,  and  does  not 
include  "constructive"  possession,  in  the  strictest  use  of  the  term. 


PROPERTY.  403 

Indeed,  this  doctrine  could  not  be  practically  invoked,  for  such 
possession  is  but  an  incident  of  ownership,  and  for  one  to  show 
himself  in  such  possession  he  must  show  his  title  and  prove  it. 

The  party  complaining  of  an  alleged  violation  of  his  rights  in 
real  estate,  and  who  proves  prior  possession  only,  in  support  of 
his  claim,  is  subject  to  be  defeated  by  proof  of  the  fact  that  the 
party  complained  against  is  the  true  owner,  or  his  representative. 
In  most  instances,  such  right  may  also  be  defeated  by  proving, 
affirmatively,  that  the  legal  title  to  the  land  is  in  a  third  party; 
proof  of  an  outstanding  equity  is,  however,  not  usually  sufficient 
for  such  purpose. 


CHAPTER  XXL 

PROPERTY  (CONTD.) 
PERSONAL  PROPERTY. 

We  have  already  defined  both  real  and  personal  property.  It 
may  be  well,  however,  to  repeat  that  everything  which  is  transient 
or  movable,  no  matter  what  the  nature  of  the  estate  in  it  may  be, 
and  also  every  interest  or  estate  in  things  immovable  and  per- 
manent which  is  not  heritable  or  which  has  a  definite  time  to  ex- 
pire, is  personal  property. 

Some  personal  property  is  corporeal  and  much  is  incorporeal. 
The  law  deals  with  each  after  its  kind  prescribing  for  each  class 
such  rules  as  will  work  the  greatest  justice  in  the  greatest  number 
of  cases. 

To  attempt  to  give  the  details  of  these  different  provisions 
would  be  to  cover  a  very  large  part  of  the  law. 

The  methods  by  which  property  may  be  acquired  have  been  dis- 
cussed at  some  length.  Practically  all  these  methods  apply 
to  personal  property  according  to  its  kind. 

As  personal  property  lacks  the  quality  of  permanency  and 
ordinarily  is  of  a  kind  that  is  subject  to  a  great  many  transfers, 
the  general  rule  is  that  title  to  it  may  be  shown  by  parol  proof 
and  that  written  instruments  are  not  required  as  evidence  of 
transfer.  This  rule  is  not  universal.  Its  most  common  exception 
is  in  the  case  of  leasehold  interests  in  land  for  periods  longer  than 
one  year.  In  some  kinds  of  commercial  paper,  particularly  that 
payable  to  order,  the  highest  and  most  beneficial  title  can  only  be 
passed  in  writing. 

The  distinction  between  general  and  special  property  in  things 
is  recognized  as  well  in  the  law  of  personal  as  of  real  things.  That 
is,  one  may  be  the  general  owner  of  a  thing,  his  estate  including 
all  five  of  the  elements  of  ownership,  or  he  may  have  some  less 
estate  limited  in  some  respect  as  to  one  or  more  of  these  elements. 

"While  it  would  not  be  profitable  to  consider  all  the  different 


PROPERTY.  405 

methods  by  which  title  to  personal  property  may  be  acquired, 
there  are  a  few  so  important  as  to  demand  attention. 
Transfers  of  Title. 

Sales. — A  sale  is  the  transfer  of  personal  property  for  a  price 
in  money.  As  sales  are  species  of  contracts  they  involve  genuine- 
ness of  assent,  competency  of  parties,  consideration,  legality  of 
purpose,  and  form. 

In  addition  to  these  requirements  which  are  essential  to  all 
contracts  it  is  necessary  that  there  be  some  thing  the  title  to  which 
is  passed  by  the  sale.  This  thing  must  be  in  existence,  definite 
and  ascertained. 

Existence  of  the  thing  may  be  actual  or  potential.  Actual 
existence  needs  no  explanation.  In  the  law  of  sales  the  product 
or  increase  of  things  actually  in  existence  and  then  belonging  to 
the  seller  which  will  come  into  being  according  to  natural  laws 
and  the  usual  course  of  dealing  with  the  thing  are  regarded  as 
existing  potentially  or  as  in  potential  existence. 

Thus,  if  a  man  owns  a  flock  of  sheep  which  have  just  been 
sheared  the  sheep  are  in  actual  being  and  are,  of  course,  proper 
subject  matter  of  sale.  In  the  natural  order  of  things  these  sheep 
will  continue  to  grow  wool  which  will  be  ready  for  shearing 
within  a  few  months.  This  wool  is  in  potential  existence  and  may 
be  sold  by  the  owner  of  the  sheep.  Or,  if  a  man  owns  a  farm 
which  he  is  cultivating,  the  matured  crops  are  not  in  existence  at 
the  time  of  planting  but  as  planting  and  cultivation  in  the  ordi- 
nary course  of  nature  result  in  matured  crops,  the  matured  crop 
is  regarded  in  law  as  in  potential  existence. 

Not  only  must  the  thing  to  be  regarded  in  potential  existence  be 
an  actual  product  of  some  thing  then  in  actual  existence  and  cap- 
able of  definite  ascertainment  but  the  thing  actually  existing 
must,  at  the  time  of  the  sale,  belong  to  the  seller. 

Thus,  while  A  may  sell  the  wool  still  to  be  grown  on  a  flock  of 
sheep  belonging  to  him,  he  cannot  sell  the  wool  to  be  grown  on  a 
flock  of  sheep  owned  by  B  even  though  he  intends  to  purchase  the 
sheep.  To  allow  this  doubles  the  uncertainty.  First,  there  is  the 
uncertainty  as  to  the  growth  of  the  wool.  The  flock  of  sheep  may 
die  or  become  diseased  and  hence  produce  no  wool.  Second, 
there  is  the  uncertainty  of  A  being  able  to  buy  the  sheep  from  B. 
Hence  the  law  declines  to  take  this  dmiblo  risk. 


406  AMERICAN   ELEMENTARY  LAW. 

Not  only  must  the  thing  sold  be  in  existence,  as  just  explained, 
but  it  must  be  definitely  ascertained  and  identified.  If  a  man  had 
a  thousand  bushels  of  corn  in  the  crib  he  may  sell  it  all  or  he  may 
sell  any  undivided  interest  or  share  in  it,  as  one  third  or  one  half, 
and  title  will  pass.  But  he  cannot  sell  fifty  bushels  and  pass  title 
to  any  particular  fifty  bushels  until  both  parties,  or  one  of  them 
under  the  authority  of  both,  separates  the  particular  fifty  bushels 
which  is  sold  from  the  general  mass  of  corn  in  the  crib. 

To  this  rule  there  is  an  exception  made  in  the  case  of  grain  in 
public  elevators  and  of  oil  in  reservoirs.  The  reason  for  these  ex- 
ceptions is  a  matter  of  business  convenience,  rather  than  legal 
principle. 

To  constitute  the  transfer  a  sale  it  must  be  for  a  price  in  money. 
This  price  may  be  paid  in  cash,  or  part  cash  and  part  at  some 
later  date,  or  all  at  a  later  date.  The  time  of  payment  is  imma- 
terial, but  the  consideration  must  be  money. 

The  general  rule  at  law  is  that  the  seller  of  personal  property 
can  convey  no  better  title  than  he  has.  In  other  words,  the  doc- 
trine of  innocent  purchaser  is  not  generally  applicable  in  trans- 
fers of  personal  property. 

To  this  rule  there  are  a  few  exceptions.  The  first  relates  to  ne- 
gotiable instruments;  the  second,  to  the  sale  of  property  by  one 
who  has  a  prima  facie,  though  defeasible,  title,  as  where  one  has 
procured  the  title  to  the  property  by  fraud.  The  third  is 
where  a  person,  though  not  the  owner,  has  all  the  indicia  of  own- 
ership when  he  holds  such  evidence  through  the  wrongful  conduct 
of  the  real  owner. 

The  seller  impliedly  warrants  the  title  to  the  thing  sold  but 
does  not  ordinarily  warrant  its  quality  or  soundness.  The  cases 
in  which  the  law  implies  a  warranty  of  the  quality  or  fitness  of 
the  thing  are  those  in  which  it  is  the  legal  duty  of  the  seller  to 
disclose  defects.  These,  and  the  principles  governing  them,  have 
been  discussed  under  the  general  head  of  Fraud  and  the  special 
head  of  Non-disclosure. 

Sales  and  contracts  to  sell  are  subject  to  the  general  rules  of 
law  as  to  legality  of  purpose.  This  has  been  discussed  under  the 
head  of  Rights  against  Particular  Persons  and  need  not  be 
repeated  further  than  to  say  that  if  the  agreement  under  consid- 


PROPERTY.  407 

ation  be  performed  so  far  as  to  transfer  the  title,  the  law  will  not 
open  up  the  matter  and  restore  the  title  to  the  original  seller  be- 
cause the  sale  was  made  for  an  unlawful  purpose.  But  if  the  ille- 
gality of  purpose  be  known  to  and  acquiesced  in  by  the  seller,  or 
if  the  offense  contemplated  be  a  heinous  one,  known  to  the  seller, 
whether  he  acquiesce  in  it  or  not,  he  cannot  compel  the  purchaser 
to  pay  any  unpaid  portion  of  the  price.  If  the  agreement  be  one 
to  sell  and  not  a  consummated  sale,  the  enforcement  of  its  per- 
formance will  be  subject  to  the  general  rules  heretofore  stated. 

Barter  or  Exchange. — A  barter  or  exchange  is  the  transfer  of 
the  title  in  one  thing  in  consideration  of  the  transfer  of  the  title 
in  another  thing. 

It  differs  from  a  sale  only  as  to  the  consideration.  In  sales  this 
is  always  a  price  in  money  and  in  barter  some  thing  of  value  other 
than  money  or  a  promise  to  pay  money  by  the  seller. 

In  all  other  respects  the  rules  governing  sales  are  applicable  to 
barter. 

Gifts. — A  gift  is  the  transfer  of  the  title  to  a  thing  without  con- 
sideration. As  heretofore  seen  promises  to  give  are  non-enforce- 
able but  when  the  promise  is  performed  and  the  thing  actually 
delivered  to  the  donee  title  passes  and  the  donor  cannot  thereafter 
lawfully  reclaim  or  retake  it. 

If  the  donor,  at  the  time  he  made  the  gift,  was  insolvent,  or  if 
by  making  the  gift  he  makes  himself  insolvent,  his  creditors  can 
follow  the  thing  given  into  the  hands  of  the  donee  and  sell  it  or 
enough  of  it  to  satisfy  their  just  claims. 

Bailments. — The  most  usual  kind  of  special  ownership  in  per- 
sonal property  is  bailment.  A  bailment  is  the  possession  of  per- 
sonal property  belonging  to  another  for  the  fulfillment  of  a  cer- 
tain purpose  or  purposes  with  respect  thereto. 

To  be  the  subject  of  bailment  the  property  must  be  corporeal, 
though  corporeal  evidences  of  incorporeal  rights,  such  as  promis- 
sory notes,  certificates  of  stock,  may  be  bailed. 

The  purposes  for  which  bailments  may  be  made  are  as  various 
as  the  exigencies  of  business  and  social  life. 

Bailments  usually  arise  from  agreement  of  parties  though 
sometimes  they  grow  out  of  the  wrongful  act  of  the  bailee  in  tak- 
ing possession  of  property  belonging  to  another  and  dealing  with 
it  as  his  own.  In  these  latter  cases  it  is  never  legally  obligatory  on 


408  AMERICAN   ELEMENTARY   LAW. 

the  owner  to  treat  the  wrongdoer  as  a  bailee.    He  is  simply  per- 
mitted to  do  so  if  he  finds  it  to  his  advantage. 

Bailments  are  usually  divided  into  three  general  classes: 

(1)  Those  for  the  sole  benefit  of  the  bailor. 

(2)  Those  for  the  sole  benefit  of  the  bailee. 

(3)  Those  for  the  mutual  benefit  of  both  parties. 

In  the  first  class  of  cases,  Bailments  solely  for  the  benefit  of  the 
bailor,  the  law  requires  the  bailee  to  use  only  a  slight  degree  of 
care.  These  are  usually  cases  in  which  the  owner  of  property  in- 
duces another  to  take  possession  of  it  and  keep  it  for  him  without 
any  compensation.  As  the  bailee  gets  no  reward  for  his  trouble 
and  sometimes  not  even  for  his  expense  the  law  does  not  regard  it 
as  just  to  exact  of  him  even  as  much  care  as  a  man  ordinarily  ex- 
ercises in  his  own  business  affairs. 

In  the  second  class  of  cases,  Bailments  solely  for  the  benefit  of 
the  bailee,  the  law  requires  of  the  bailee  a  high  degree  of  care. 
As  the  bailee  is  getting  the  benefit  of  the  possession  and  use  of  the 
property  of  another  solely  for  his  own  advantage  without  paying 
the  owner  anything  for  it,  the  law  regards  it  just  to  require  of 
him  a  higher  degree  of  care  than  is  ordinarily  exercised  by  a  man 
in  the  conduct  of  his  own  affairs. 

In  the  third  class  of  cases,  Bailments  for  the  mutual  benefit  of 
both  parties,  the  law  looks  upon  the  bailment  as  an  ordinary  busi- 
ness transaction  and  requires  ordinary  care  by  the  bailee. 

Every  case  of  bailment  must  come  in  one  or  the  other  of  these 
classes.  These  general  doctrines  run  through  and  determine  the 
whole  body  of  the  law  regulating  the  duties  of  a  person  in  pos- 
session of  personal  property  belonging  to  another  when  the  trans- 
action is  purely  private.  In  some  classes  of  bailments  the  public, 
as  well  as  the  bailor  and  bailee  are  interested.  In  such  cases  the 
rights  of  the  parties  are  affected  by  the  public  nature  of  the  busi- 
ness and  are  governed  by  rules  peculiarly  adapted  to  the  special 
facts  and  conditions.  The  most  frequent  illustrations  of  this 
kind  of  bailment  occur  in  the  business  of  common  carriers  and 
inn-keepers. 

Incorporeal  Personal  Property. 

There  are  a  number  of  incorporeal  things  which  are  personal 
property.    Some  of  them  are  of  very  great  value.    The  most  im- 


PROPERTY.  409 

portant  of  these  are  choses  in  action,  patent  rights,  copy-rights, 
good  will,  and  trade  marks. 

Chose  in  Action. — A  chose  in  action  is  a  legally  enforceable 
claim  for  money  which  the  creditor  has  no  means  of  collecting  ex- 
cept by  suit. 

It  is  immaterial  whether  the  claim  arise  from  a  contract  or  for 
breach  of  contract  or  from  a  tort  so  long  as  it  is  a  right  to  demand 
and  receive  money  recognized  by  law  and  enforceable  by  suit. 

At  Common  Law  choses  in  action  were  not  assignable.  The 
reasons  given  usually  were  the  personal  nature  of  contracts  in  the 
earlier  view  of  the  law,  and  that  to  permit  such  assignments 
would  encourage  litigation. 

The  first  serious  modification  of  this  doctrine  resulted  from  the 
recognition,  in  a  somewhat  modified  form,  of  the  law  merchant,  of 
which  negotiability  of  certain  promises  to  pay  was  one  of  the  most 
important  doctrines.  The  next  step  was  to  recognize  assignments 
of  Common  Law  choses  in  action  to  such  an  extent  that  payment 
by  the  debtor  to  the  assignee  would  discharge  the  debt.  Next 
came  the  practice  of  permitting  the  assignee  to  institute  and 
maintain  suits  on  such  choses  in  action  in  the  name  of  the 
assignor,  but  to  the  use  of  the  assignee.  This  was  later  followed 
by  recognizing  the  right  of  the  assignee  of  choses  in  action  arising 
out  of  contract  to  sue  in  his  own  name. 

The  prevailing  rule  now  is  that  choses  in  action  consisting  of 
contracts  to  pay  money,  or  legal  demands  for  money  based  upon 
breach  of  contract,  and  legal  demands  for  money  growing  out  of 
torts  in  violation  of  property  rights  may  be  assigned,  but  that 
claims  for  damage  for  torts  in  violation  of  personal  rights  are 
nonassignable. 

This  change  in  the  law  has,  in  some  instances,  been  effected  by 
statute  and  in  others  by  judicial  action.  The  statutes  in  some 
States  go  beyond  the  rules  stated  above  and  permit  the  assign- 
ment of  all  choses  in  action  whatsoever. 

Patents. — When  a  person  invents  some  new  and  useful  appli- 
ance or  machine,  or  discovers  some  new  process  by  which  to  make 
some  useful  article,  he  confers  a  benefit  upon  the  public.  In 
recognition  of  this  fact,  and  as  an  encouragement  to  such  enter- 
prise, the  law  grants  or  secures  to  the  inventor,  or  discoverer,  a 
monopoly  in  the  production  of  the  thing,  or  use  of  the  process,  for 


410  AMERICAN   ELEMENTARY   LAW. 

a  reasonable  time.  There  is  no  recognition  of  this  right  to  mo- 
nopoly at  Common  Law.  The  Federal  Constitution  confers  upon 
the  United  States  Government  the  exclusive  power  to  deal  with 
such  rights.  So  we  have  all  patent  rights  emanating  from  and 
regulated  by  that  government,  and  all  suits  for  their  viola- 
tion must  be  brought  in  the  Federal  courts.  The  acts  of  Congress 
on  this  subject  are  quite  voluminous  and  detailed. 

Two  facts  must  exist  to  make  an  invention  or  process  patent- 
able; (1)  It  must  be  new.  (2)  It  must  be  useful.  The  first  is  re- 
quired because  only  he  who  is  first  in  originating  the  idea  is 
thought  to  be  entitled  to  protection,  and  the  second  because  the 
public  is  not  interested  in  the  matter  unless  it  be  of  some  practi- 
cal benefit.  If  these  two  facts  exists,  and  are  shown,  the  inven- 
tor or  discoverer  may,  by  complying  with  all  of  the  legal  require- 
ments on  the  subject,  obtain  from  the  Federal  Government, 
through  its  proper  officers,  a  certificate  of  these  facts,  carrying 
with  it  an  exclusive  right  or  monopoly  in  the  sale  of  the  thing,  or 
the  use  of  the  process,  for  the  time  specified.  Any  other  person 
making  and  selling  the  thing,  or  using  the  process,  will  be  liable 
to  the  patentee  for  damages,  and.  in  many  instances,  to  further 
penalties.  As  these  rights  do  not  exist  except  under  the  acts  of 
Congress,  any  one  who  makes  his  invention  or  process  public, 
without  attempting  to  comply  with  those  acts,  is  held  to  waive 
his  preferential  rights.  This  waiver  is,  however,  in  the  behalf  of 
the  public,  and  not  some  other  individual;  so  no  one  else  justly 
obtain  a  patent  giving  him  exclusive  rights  in  the  premises,  but 
any  and  all  persons  would  be  equally  entitled  to  enjoy  and  par- 
ticipate in  the  benefits. 

Copyrights. — Copyrights  are  the  rights  which  an  author  or 
artist  has  in  his  literary  or  artistic  productions.  These  are  also 
exclusively  in  the  jurisdiction  of  the  Federal  Government.  To  a 
limited  extent,  they  are  recognized  and  protected  at  Common 
Law.  At  Common  Law  an  author  or  artist  was  not  compelled  to 
make  his  production  public,  nor  would  a  limited  giving  out  of  the 
literary  matter  or  display  of  the  work  of  art  be  such  a  publication 
as  would  entitle  another  to  use  or  reproduce  it,  and  any  attempt 
to  do  so  would  be  unlawful.  If,  however,  the  production  were 
once  made  public,  or  published  generally,  the  producer  lost  his 


PROPERTY.  411 

monopolistic  right  in  and  over  the  thing,  and  others  could  repro- 
duce it  with  impunity. 

The  protection  thus  afforded  is  very  inadequate,  and  has  heen 
supplemented  by  congressional  action.  The  author  or  artist  must 
show  that  he  is  the  real  originator  of  the  book,  picture,  etc.,  and, 
if  it  be  a  book,  must  deliver  two  copies  to  the  Librarian  of  Con- 
gress at  Washington,  D.  C,  and  pay  a  small  fee  for  a  certificate, 
and  his  statutory  copyright  is  thereby  secured. 

Just  what  constitutes  a  violation  of  this  monopolistic  right  is 
frequently  difficult  to  decide.  The  right  covers  the  manner 
of  presentation  of  the  idea,  both  in  the  organization  of  the  sub- 
ject, the  language  used,  and  the  illustrations  employed.  The 
fundamental  truth  contained  in  the  book  or  picture  no  man  can 
monopolize.  The  truth  is  free,  and  must  ever  remain  so.  The 
manner  of  expressing  the  truth  is  personal  and  individual,  and  is 
properly  a  subject  matter  of  individual  ownership,  and  is  justly 
protected  by  the  law.  The  application  of  these  general  doctrines 
is  difficult,  and  involves  matters  of  technique  and  detail  outside 
our  present  purpose. 

Good  Will. — This  is  a  phrase  having  a  technical  meaning. 
Mr.  Bouvier  defines  it  as  ''the  benefit  which  arises  from  the 
establishment  of  particular  trades  or  occupations.  The  ad- 
vantage or  benefit  which  is  acquired  by  an  establishment,  be- 
yond the  mere  value  of  the  capital,  stocks,  funds,  or  prop- 
erty employed  therein,  in  consequence  of  the  general  public  pat- 
ronage and  encouragement  which  it  receives  from  constant  or 
habitual  customers,  on  account  of  its  local  position  or  common 
celebrity,  or  reputation  for  skill  or  influence,  or  from  other  acci- 
dental circumstances  or  necessities,  or  even  from  ancient  partial- 
ities or  prejudices."  It  is  the  reasonable  expectation  of  continued 
patronage  in  the  business.  It  is  due  largely  to  the  business  repu- 
tation of  an  establishment,  and  includes  the  trade  or  patronage 
drawn  by  it.    It  is  frequently  quite  a  valuable  asset. 

Trade  Marks. — Closely  connected  with  Good  Will  are  Trade 
Marks.  A  trade  mark  is  some  symbol  or  emblem  which  a  manu- 
facturer or  dealer  in  goods,  wares,  or  merchandise  puts  on  or  at- 
taches, in  some  way,  to  commodities  put  upon  the  market,  to  indi- 
cate that  they  are  manufactured  or  sold  by  him.  The  purpose  is 
to  identify  the  goods  and  pledge  the  reputation  of  the  user  of  the 


412  AMERICAN  ELEMENTARY  LAW. 

trade  mark  that  they  are  what  they  purport  to  be.  It  is  this  that 
gives  them  value.  This  value  is  often  very  great.  An  article  with 
an  established  reputation  will  often  be  in  demand  when  a  similar 
article,  probably  just  as  good,  but  which  is  unknown,  will  scarcely 
be  called  for  by  customers.  Sometimes  certain  dealers  have  such 
reputation  that  the  public  will  readily  buy  any  article  recom- 
mended or  manufacteured  by  them.  Either  of  these  conditions 
adds  largely  to  the  selling  qualities  of  the  article,  and  when  they 
are  combined,  as  is  frequently  the  case,  the  advantage  is,  of 
course,  greater. 

Trade  marks  are  means  of  identifying  commodities  put  upon  the 
market  and  of  showing  by  whom  they  are  made  and  sold.  When 
an  article  thus  indicated  has  an  established  reputation,  the  temp- 
tation to  others  to  adopt  the  marks  by  which  it  is  known,  and 
use  them  to  increase  the  sales  of  similar  commodities  dealt  in  by 
them,  is  very  great.  The  injurious  effects  upon  the  owner  of 
the  trade  mark  are  of  two  kinds:  (1)  His  trade  is  directly  de- 
creased by  substituting  the  spurious  article  for  the  genuine; 
(2)  the  substitute  may  be  greatly  inferior  to  his,  and  so  the  repu- 
tation he  has  established  be  injured.  It  is,  therefore  important 
that  rights  in  trade  marks  and  the  means  for  their  legal  protec- 
tion be  understood.  Unlike  patents  and  copyrights,  they  are 
Common  Law  rights,  and  are  not  peculiarly  within  the  jurisdic- 
tion of  the  Federal  Government. 

These  rules  may  be  somewhat  briefly  summarized  as  follows: 
"When  a  person  adopts  a  trade  mark,  consisting  of  symbols  and 
other  indicia,  descriptive  of  his  manufactured  articles  or  com- 
modities, and  uses  it  in  his  business,  he  thereby  acquires  a  right 
to  the  exclusive  use  of  all  arbitrary  symbols  so  adopted,  and  also 
of  any  arbitrary  combination  of  words  or  any  new  and  arbitrary 
application  of  any  common  word  by  which  he  gives  to  it  an  arbi- 
trary meaning  in  that  particular  combination ;  but  he  does  not  ac- 
quire the  right  to  an  exclusive  use  of  a  common  word  descriptive 
of  the  commodity  or  the  purposes  for  which  it  can  be  used.  All 
persons  have  the  right  to  use  common  words  in  their  common 
meanings,  and  no  one  can  acquire  a  monopoly  in  such  use. 

The  right  stated  above  depends  on  the  adoption  and  use  of  the 
trade  mark,  and  not  on  any  patent  or  copyright  legislation.  If 
the  commodity  be  such  that  it  comes  within  the  patent  laws,  or 


PROPERTY.  413 

the  symbols  or  indicia  are  such  that  they  can  be  copyrighted, 
rights  may  also  be  acquired  under  such  legislation ;  but  trade 
mark  rights,  as  such,  are  recognized  and  protected  independently 
of  these  statutes. 

When  the  right  to  a  trade  mark  exists  it  may  be  infringed  in 
three  ways : 

(1)  By  a  fac-simile  reproduction. 

(2)  By  such  an  imitation,  though  not  a  reproduction,  as  is  rea- 
sonably calculated  to  deceive  the  public  into  the  belief  that  the 
article  indicated  by  and  sold  under  the  imitation  is  the  same  as 
that  indicated  by  and  sold  under  the  genuine  trade  mark.  In  de- 
termining this  question,  the  entire  trade  mark  and  label,  and  size 
and  appearance  of  the  package  as  exposed  for  sale,  are  to  be  con- 
sidered ;  the  similarity  does  not  have  to  be  so  great  as  to  render 
the  difference  incapable  of  detection  except  by  putting  the  two  in 
proximity,  but  it  is  sufficient  if  it  is  so  close  as  reasonably  to  be 
calculated  to  deceive  the  purchasing  public  in  the  open  market. 

Under  the  circumstances  set  out  in  this  and  the  preceding 
paragraph,  no  fraudulent  purpose  or  design  to  imitate  is  neces- 
sary to  constitute  an  infringement. 

(3)  Infringement  may  be  effected  by  the  purposed  and  de- 
signed imitation  of  a  trade  mark,  with  the  design  to  avail  of  the 
reputation  of  the  article  sold  under  the  genuine  trade  mark,  and 
put  the  substituted  article  on  the  market  and  induce  purchasers 
to  buy  it  in  the  belief  that  it  is  the  article  indicated  by  the  genu- 
ine trade  mark.  In  case  of  such  willful  wrong,  there  need  not  be 
such  imitation  as  is  calculated  to  deceive  the  public,  but  only  such 
as  might  possibly  deceive.  The  remedies  for  infringement  are 
damages  for  loss  already  sustained  by  reason  of  it,  and  injunction 
against  continuation  of  the  wrong. 

TRANSMISSION  OF  PROPERTY  ON  THE  DEATH  OP  THE  OWNER. 

Ownership  of  property,  according  to  the  American  idea,  carries 
with  it  not  only  the  right  of  dominion  over  the  thing  owned,  but 
also  the  power  of  disposition  after  death.  This  power  of  deter- 
mining who  shall  succeed  to  the  ownership  of  things  owned, 
after  the  death  of  the  present  owner,  is  exercised  by  making  a 
will,  or  testament,  as  it  is  sometimes  called.  The  law  regulates  this 
power,  both  in  the  manner  of  its  exercise,  and  the  manner  of  es- 


414  AMERICAN  ELEMENTARY  LAW. 

tablishment  and  proof  of  the  will  and,  in  some  respects,  as  to  its 
effects.  These  regulations  differ  in  the  several  States,  though 
their  main  features  are  the  same. 

Wills. 

Usually  any  person  capable  in  law  of  disposing  of  property 
during  life  may  dispose  of  it  by  will,  and  very  frequently,  if  not 
universally,  this  power  is  extended  so  as  to  include  married 
women,  and  sometimes  married  men  who  are  minors.  The  for- 
malities with  which  wills  are  to  be  executed  are  not  uniform,  but 
they  usually  require  that  the  will  be  written  and  executed  in  the 
presence  of  two  or  more  witnesses.  Sometimes  personal  property 
may  be  disposed  of  by  parol  will,  but  this  is  not  the  rule.  As  to 
the  effect  of  the  will,  the  rule  is  that  the  property  passes  as  pro- 
vided in  the  will,  but  it  is  always  subject  to  the  just  claims  of  the 
creditors  of  the  deceased,  and  frequently  to  the  right  of  use  by 
surviving  members  of  the  family.  Death  does  not  pay  a  man's 
debts,  and  the  property  he  leaves  is,  primarily,  to  be  appropriated 
to  their  payment,  and  the  same  general  policy  which  prohibits  one 
giving  away  property  needed  to  pay  his  debts  makes  his  disposi- 
tion of  it  by  will  subject  to  the  same  limitations.  So  if  a  piece  of 
property  be  willed  to  a  person,  with  all  the  legal  formalities,  still 
he  will  receive  no  beneficial  interest  from  it  if  there  is  not  enough 
other  property  in  the  estate  to  pay  the  debts  of  the  testator. 
There  are,  also,  some  family  rights  in  the  property  of  the  deceased 
which  are  superior  to  rights  created  by  will.  The  most  striking 
example  of  this  is  in  the  homestead  laws.  The  husband  can  not 
sell  the  homestead  during  his  life  without  the  joinder  of  the  wif e ; 
so,  if  he  wills  it  to  some  one  else,  the  title  thus  acquired  would  be 
subject  to  the  continued  use  of  the  property  by  the  family,  as  long 
as  they  so  desire,  or  as  long  as  the  family  shall  continue  to  exist. 
Subject,  however,  to  this  right,  the  property  would  go  to  the  de- 
visee in  the  will,  and  he  would  be  entitled  to  its  use  and  enjoy- 
ment after  the  homestead  terminated. 

Inheritance. 

If  the  owner  dies  without  making  a  will,  the  property  passes  to 
his  heirs,  under  the  law  of  the  State  in  which  it  is  situated.  Gen- 
erally, heirship  is  made  dependent  upon  nearness  of  relationship 
to  the  deceased.    The  distribution  of  the  property  is  fixed  by  the 


PROPERTY.  415 

law  applicable  to  the  kind  of  property  in  question.  Personal 
property  is  usually  governed  by  the  law  of  the  country  in  which 
the  deceased  had  his  permanent  residence;  land,  by  that  in 
which  it  is  situated. 

Laws  of  inheritance  are  within  the  will  of  the  legislative  de- 
partment of  the  government.  No  one  has  vested  rights  under 
them  prior  to  the  death  of  the  ancestor;  so  the  legislature  can 
make  such  disposition  of  the  residue  of  estates  after  the  debts  are 
paid  as  it  sees  fit,  and  can  put  such  limitations  and  attach  such 
incidents  to  inheritance  as  it  chooses,  such  regulations  to  be  oper- 
ative as  to  the  estates  of  all  persons  who  die  after  their  enactment. 
They  can  not  be  made  retroactive,  and  destroy  rights  under  laws 
in  force  at  the  time  of  prior  deaths. 

Administration. 

The  property  of  a  deceased  person,  if  there  be  a  will,  is  taken 
charge  of  by  the  person  appointed  in  the  will  for  the  purpose, 
called  an  executor,  or  by  suitable  persons  appointed  by  the  pro- 
bate courts.  Sometimes  the  will  provides  that  the  executor  shall 
manage  the  estate  free  from  control  by  the  courts.  In  such  a 
case,  this  provision  is  respected  so  long  as  the  executor  is  conduct- 
ing the  affairs  of  the  estate  properly,  in  accordance  with  the  will 
and  the  law.  If  he  does  not,  he  will  be  removed,  and  the  estate 
will  be  taken  charge  of  by  the  probate  court,  through  some  suita- 
ble person,  who  will  administer  it  in  conformity  with  the  will  and 
the  law.  If  no  such  provision  is  in  the  will,  the  executor  is  under 
the  general  supervision  and  control  of  the  probate  court,  and 
carries  out  the  provisions  of  the  will  as  construed  and  enforced 
by  the  court.  If  there  is  no  will,  the  probate  court  selects  some 
discreet  and  proper  person  and  takes  charge  and  closes  up  the  es- 
tate through  him.  The  administration  of  an  estate  includes  tak- 
ing it  into  possession,  managing  and  controlling  it  until  all  just 
claims  aganst  it  are  proved  up  and  satisfied,  and  then  distributing 
the  residue,  if  any,  among  the  devisees,  if  there  be  a  will,  or 
among  the  heirs,  if  there  be  no  will.  This  is  a  most  important 
duty,  and  can  not  be  too  carefully  performed.  If  there  is  no  will, 
and  no  heirs  are  known,  the  residue  of  the  estate  is  placed  in  the 
treasury  of  the  State,  to  await  claims  of  persons  who  may  present 
themselves  as  heirs  within  a  specified  time;  if  no  one  comes  for- 
ward and  establishes  a  claim  within  that  time,  it  goes  to  the  State. 


CHAPTER  XXII. 

PUBLIC  UTILITIES  AND  PRIVATE  PROPERTY  APPLIED  TO  PUBLIC  USES. 

Matters  Purely  Public. — The  truth  expressed  in  the  ancient 
maxim  that  public  safety  is  the  supreme  law  is  probably  the  basis 
of  all  organized  government.  In  the  United  States  where  all  gov- 
ernments are  organized  by  the  sovereign  people  through  written 
instruments  called  Constitutions,  these  instruments  are  at  once 
the  sources  of  and  limitations  upon  governmental  authority.  They 
are  the  direct  expressions  of  the  sovereign  will  and  their  man- 
dates are  binding  upon  the  government  and  all  governmental 
agencies  created  thereby  as  well  as  upon  private  individuals.  In 
any  particular  State,  therefore,  the  supreme  law  as  above  denned 
is  limited  by  all  pertinent  constitutional  provisions  and  the  gov- 
ernment cannot  lawfully  interfere  with  the  individual  contrary  to 
the  constitutional  provisions  even  though  it  might  be  demonstra- 
ble that  such  interference  would  subserve  the  public  good.  Lim- 
itations of  this  kind,  so  far  as  the  States  are  concerned,  are  found 
in  both  the  Constitution  of  the  United  States  and  of  the  particu- 
lar State. 

The  Federal  Constitution  stands  upon  a  different  basis.  It  is, 
strictly  speaking,  a  creative  instrument.  The  government  brought 
into  being  thereby  has  such  powers,  and  such  powers  only,  as  are 
conferred  upon  it  by  that  instrument.  Still,  the  people  of  the 
United  States  insisted  upon  incorporating  in  the  original  Consti- 
tution and  in  numerous  amendments  thereto  positive  restrictions 
upon  the  exercise  of  governmental  power. 

Notwithstanding  these  facts,  there  is  much  authority  in  the 
Federal  and  State  governments,  particularly  the  latter,  for  the 
just  subordination  of  private  interest  to  the  public  good.  In  what 
respects  and  to  what  extent  and  by  what  means  this  should  be  ac- 
complished are  often  matters  of  violent  social  and  political  dis- 
cussion.   And  the  end  is  not  yet. 


PUBLIC   UTILITIES   AND   PRIVATE   PROPERTY.  417 

There  are  certain  purposes  so  essentially  public  that  there  is  no 
disagreement  as  to  the  government's  right,  or  even  duty,  to  ac- 
complish them  through  public  agencies.  Such  as  the  enactment 
of  law,  the  administration  of  justice,  and  other  similar  activities. 

PUBLIC  UTILITIES. 

There  are  certain  other  public  duties  essential  to  our  present 
social  conditions,  which  we  are  accustomed  to  have  performed,  in 
a  great  measure,  by  private  individuals.  Such  as  the  maintain- 
ance  of  railroads  and  telegraph  and  telephone  companies.  The 
interest  of  the  public  in  these  enterprises,  in  the  safety  and  effi- 
ciency of  the  services  rendered  by  those  conducting  them  and  in 
the  charges  made  therefor  are  so  clearly  matters  of  public  concern 
that  they  have  passed  from  the  field  of  discussion. 

There  are  other  services  such  as  supplying  water,  light,  and 
sewers  in  thickly  settled  communities,  which  are  so  closely  con- 
nected with  the  public  convenience,  health  and  safety,  that  there 
is  no  room  for  doubt  as  to  their  public  nature. 

Such  enterprises  are  often  conducted  by  public  and  often  by 
private  means.  All  of  them,  viz.,  railroads,  telegraphs,  telephones, 
light  plants,  water  plants,  sewers,  and  others  of  similar  nature, 
whether  operated  by  public  or  private  means  are  clearly  public 
utilities  and  the  law  is  justified  in  dealing  with  them  as  such. 

When  such  enterprises  are  carried  on  at  the  public  expense, 
through  public  agents  there  can  be  no  doubt  of  the  State's  right 
to  supervise  and  control  them  in  any  way  it  sees  fit,  so  long  as  it 
does  not  misappropriate  public  funds  or  conduct  the  business  in 
such  manner  as  to  interfere  with  the  legal  rights  of  individuals. 

When  such  enterprises  are  undertaken  by  private  persons  their 
public  nature  subjects  them  to  reasonable  and  proper  regulation 
and  supervision  by  the  State.  This  is  true  whether  the  parties  en- 
gaged in  the  enterprise  have  been  granted  special  privileges  or  not. 
But  the  doctrine  is  particularly  applicable  in  those  cases  in  which, 
owing  to  the  public  nature  of  the  business,  the  parties  engaged 
therein  have  had  public  concessions  made  them  or  special  privi- 
leges and  authority  conferred  upon  them. 

When  these  enterprises  are  conducted  by  private  persons, 
whether  individual  or  corporate,  the  control  exercised  over  them 
Bhould  always  be  reasonable  and  just  both  to  the  public  and  to 
27 


418  AMERICAN  ELEMENTARY   LAW. 

the  owners.  The  law  should  not  lean  to  the  public  and  so  impose 
undue  burden  upon  the  owners  of  the  property ;  it  should  not  lean 
to  the  owners  and  so  permit  undue  burdens  to  be  placed  upon  the 
public. 

Extent  of  Governmental  Control. 

The  respects  in  which  this  special  right  of  control  exists  are : 

(1)  The  right  of  supervision  and  inspection.  This  right  ex- 
tends to  the  whole  plant,  covering  premises,  appliances,  and  op- 
eratives. 

(2)  The  reasonable  regulation  of  the  manner  of  conducting  the 
business.  This  extends  to  every  department  of  the  operation  in- 
efficiency in  which  would  result  in  hurt  to  the  public. 

(3)  The  regulation  of  charges  for  services  rendered.  This 
right  to  regulate  covers  both  reasonableness  and  uniformity  in  the 
charges. 

(4)  As  incidental  to  the  foregoing  powers,  the  State  has  the 
right  to  control  the  amount  of  liability  which  may  be  incurred  in 
connection  with  such  businesses  and  to  see  that  the  money 
or  funds  received  for  the  business  are  really  applied  thereto. 

(5)  When  the  business  is  carried  on  by  a  private  corporation, 
the  State  creating  the  corporation  or  in  which  it  is  doing  business, 
has  the  right  to  inspect  the  books,  papers  and  records  of  the  con- 
cern.   This  is  usally  known  as  the  visitorial  power  of  the  State. 

Special  Privileges. — As  all  the  enterprises  of  which  we  have 
just  spoken  are  public  in  their  nature,  it  is  permissable  and  cus- 
tomary to  confer  upon  the  parties  undertaking  to  carry  them  on 
certain  privileges  necessary  for  their  efficiency. 

Among  the  most  important  of  the  privileges  usually  conferred, 
is  the  power  of  eminent  domain,  under  which  property  may  be 
taken,  upon  just  compensation  being  made  therefor,  without  the 
consent  of  the  owner  for  use  in  carrying  on  the  public  enterprise. 
It  is  under  this  power  that  railroad  companies  can  compel  the  sale 
to  them  of  lands  for  their  right-of-way  and  depots,  telephone  and 
telegraph  companies  can  acquire  property  over  which  to  erect 
their  lines,  and  gas  and  water  companies  to  lay  their  pipes,  etc. 

This  power  cannot  be  exercised  by  any  company  organized  for 
any  of  the  foregoing  purposes  unless  the  State  has  conferred  such 
power  on  the  class  of  companies  to  which  the  particular  one 
claiming  the  right  belongs ;  for,  while  it  is  lawful  for  the  State  to 


PUBLIC   UTILITIES   AND  PRIVATE  PROPERTY.  419 

confer  such  power,  it  does  not  exist  in  the  absence  of  constitu- 
tional or  legislative  grant. 

Persons  operating  public  utilities,  such  as  light  plants  and  tele- 
phones, and  who  furnish  their  patrons  with  appliances  to  be 
used  upon  their  premises,  have  the  right  to  enter  upon  the  prem- 
ises at  reasonable  times  and  in  a  proper  manner,  for  the  purpose 
of  inspecting  and  repairing  the  appliances  and,  at  the  expiration 
of  the  contract  of  service,  to  remove  the  same. 

All  such  concerns  have  the  right  to  make  reasonable  and  uni- 
form charges  for  services  rendered  which  may,  if  they  see  fit,  be 
collected  in  advance  of  rendering  the  service. 

Duties  Due  to  the  Public. — Persons  engaged  in  any  enterprise 
known  as  a  public  utility  owe  to  the  public  and  to  each  individual 
patron  the  following  duties : 

(1)  To  render  efficient  service. 

(2)  To  render  such  service  promptly. 

(3)  To  render  such  service  without  subjecting  the  patron  or 
his  known  rights  to  unreasonable  danger. 

(4)  To  render  such  service  uniformly  and  without  unjust  dis- 
crimination. 

(5)  To  charge  only  reasonable  and  unifcim  rates. 

(6)  To  treat  their  patrons  with  reasonable  courtesy. 

These  comprehend  the  duties  ordinarily  required  of  persons 
engaged  in  such  enterprises.  In  some  cases,  especially  as  to  com- 
mon carriers,  there  are  rules  of  exceptional  stringency.  These, 
however,  may  be  regarded  as  special  application  of  the  general 
doctrines  above  announced  to  the  details  of  that  particular  busi- 
ness rather  than  the  announcement  of  additional  rules. 

COMMON  CARRIERS. 

A  common  carrier  is  one  who  undertakes  for  value  to  carry 
goods  or  passengers  or  both  for  all  who  apply,  over  a  designated 
route  or  within  a  designated  territory,  in  or  upon  designated 
kinds  of  vehicles. 

The  authorities  differ  as  to  whether  a  carrier  of  passengers 
should  be  called  a  common  carrier  or  a  public  carrier.  This  dif- 
ference grows  out  of  the  fact  that  a  passenger  cannot  be  subjected 
to  the  dominion  of  the  carrier  to  the  extent  and  in  the  manner 
that  freight  is,  and  hence  it  is  contended  that  as  there  is  no  bail- 
ment, properly  speaking,  of  a  passenger  the  carrier  transporting 


4120  AMERICAN   ELEMENTARY   LAW. 

him  should  be  indicated  by  a  different  name  from  that  used  for 
one  who  transports  things. 

That  there  is  a  difference  in  the  dominion  exercised  over  a  per- 
son and  a  thing  during  transportation  is  undoubtedly  true.  This 
difference  finds  expression  or  recognition  Jn  the  different  rules  of 
law  enforced  as  to  carriage  of  persons  and  of  things.  Whether  or 
not  it  is  better  to  use  the  one  name  to  designate  the  carrier  in  both 
instances  or  to  use  the  different  names  as  indicating  the  legal 
distinctions,  is  practically  a  question  of  terminology  and  is  not 
an  important  one.  I  prefer  the  use  of  the  one  name  as  less  con- 
fusing and  requiring  less  repetition. 

A  common  carrier  has  a  right  to  designate  the  route  over  which 
he  will  carry,  or  the  locality  in  which  he  will  do  business.  He  also 
may  determine  whether  or  not  he  shall  carry  passengers  or  freight 
or  both.  He  may  even  restrict  his  business  to  the  carriage  of  cer- 
tain kinds  of  things.  He  may  limit  his  business  to  carriage  at  fixed 
intervals  or  may  undertake  to  carry  at  any  and  all  hours. 

To  state  the  matter  broadly,  the  carrier  may  determine  for 
himself  the  time,  place,  and  extent  of  his  business.  But  once  hav- 
ing done  this  he  must  serve  effectively,  uniformly  and  without  un- 
just discrimination,  and  for  reasonable  compensation  all  who  seek 
his  services  within  the  limit  of  the  business  as  fixed  by  him. 

Duties  and  Liabilities. — The  duties  of  a  common  carrier  are 
embraced  under  the  six  heads  given  above  as  due  from  all  persons 
supplying  any  public  utility.  In  some  respects  the  requirements 
made  of  the  carrier  are  more  strict  and  exacting  than  are  laid 
upon  others. 

Efficient  Service. — The  carrier  must  render  efficient  service. 
This  rule  is  enforced  according  to  the  nature  of  the  business  un- 
dertaken. It  would  be  manifestly  absurd  to  require  of  the  carrier 
operating  a  local  delivery  wagon  the  same  equipment  and  service 
as  may  be  justly  demanded  of  a  railroad  company.  But  the  prin- 
ciple is  the  same.  In  each  case  the  law  requires  equipment  suffi- 
cient to  render  reasonably  efficient  service  to  the  public  within 
the  limits  and  to  the  extent  the  carrier  holds  himself  out  as  serv- 
ing the  public. 

Considering  this  duty  of  efficient  service  as  resting  on  railroad 
companies,  somewhat  in  detail,  we  find  that  these  companies  are 
required : 


PUBLIC   UTILITIES   AND   PRIVATE   PROPERTY.  421 

(1)  To  acquire  and  maintain  proper  road  beds,  depots,  stations 
and  terminal  facilities. 

(2)  To  have  sufficient  rolling  stock  reasonably  safe  and  con- 
venient, with  which  to  handle  the  amount  of  business  which  their 
location  and  connections  ordinarily  supply. 

This  rolling  stock  is  not  required  to  be  of  the  latest  or  most  im- 
proved kind,  but  it  must  be  reasonably  adequate  for  and  adapted 
to  the  purpose  for  which  it  is  used.  The  carrier  is  not  required 
to  keep  sufficient  rolling  stock  and  equipment  to  meet  exceptional 
and  extraordinary  demands,  but  must  provide  enough  to  handle 
satisfactorily  and  promptly  the  amount  of  business  which  should 
reasonably  be  anticipated. 

(3)  To  have  a  reasonably  sufficient  number  of  capable  and 
trustworthy  operatives. 

This  requirement  extends  to  every  branch  of  the  service  under- 
taken for  Ijie  public.  It  is  because  of  this  duty,  that  the  State 
may  require  tests  as  to  the  competency  and  fitness  of  servants, 
and  that  a  sufficient  number  be  employed,  and  limit  the  hours  of 
continuous  service  which  may  be  required  of  them. 

(4)  To  make  and  enforce  reasonable  and  proper  rules  for  the 
conduct  of  the  business. 

In  a  business  so  extensive  and  complicated  as  the  operation  of 
a  railroad  it  is  impossible  to  have  order,  efficiency  or  safety  in  the 
absence  of  reasonable  rules  regulating  the  conduct  of  all  those 
engaged  in  carrying  out  the  enterprise.  This  duty  is  analogous 
to  that  imposed  upon  the  master  for  the  safety  of  his  servants,  but 
as  we  are  dealing  with  it  now,  it  is  a  duty  due  from  the  common 
carrier  as  such  to  its  patrons. 

Prompt  Service. — Promptness  is  one  element  of  efficiency  but 
it  is  so  important  a  duty  in  transportation,  both  of  persons  and 
freight  that  it  seems  worthy  of  separate  treatment.  It  is  the  duty 
of  a  railroad  company  to  make  ample  provision  for  handling 
freight  and  passengers  with  reasonable  expedition.  What  is  rea- 
sonable expedition  in  any  particular  case  depends  largely  on  the 
general  business  conditions  existing  at  the  place  where  the  service 
is  sought,  and  the  special  nature  of  the  service  demanded.  One 
train  a  day  going  in  each  direction  might  be  reasonably  sufficient 
to  handle  the  passenger  traffic  of  a  small  community,  whereas, 
equally  efficient  service  for  all  who  desired  transportation  in  a 


•122  AMERICAN   ELEMENTARY   LAW. 

metropolis  might  require  a  great  many  trains  a  day.  The  com- 
pany is  required  to  meet  these  local  conditions. 

Again,  promptness  in  transportation  frequently  depends  on  the 
nature  of  the  commodity  transported.  In  the  case  of  live  stock  or 
of  ripe  fruits,  quick  delivery  is  essential  to  prevent  injury  to  the 
freight  in  transit,  while  a  shipment  of  granite  or  pig  iron  might 
be  held  indefinitely  without  hurt  to  the  thing  from  its  inherent 
qualities. 

All  these  matters  the  law  takes  into  account  in  determining  the 
question  of  promptness.  We  may,  therefore,  say  that  promptness 
is  a  relative  term  dependent  on  the  nature  and  extent  of  the  busi- 
ness as  affected  by  locality  and  other  pertinent  facts  and  the  na- 
ture of  the  thing  shipped.  The  general  rule  of  Law  is,  that  both 
passengers  and  freight,  must  be  carried  within  a  reasonable  time 
considering  all  the  circumstances  of  the  case. 

Safe  Service-. — This  heading,  taken  literally,  is  misleading  as 
applied  to  most  public  utilities.  Restricted  to  common  carriers  it 
implies  a  duty  greater  than  that  imposed  by  law  as  to  passengers, 
and  though  accurate  as  a  general  statement  as  applied  to  freight, 
it  is  subject  to  several  exceptions. 

The  rule  of  safety  as  to  ordinary  public  concerns  is  that  they 
must  not  injure  intentionally  and  must  use  reasonable  care  to 
prevent  injury. 

As  to  common  carriers  of  passengers  the  rule  against  inten- 
tional hurt  has  full  force,  and  the  rule  as  to  care  is  made  more  ex- 
acting, so  as  to  demand  that  the  carrier  use  the  highest  practical 
degree  of  care  to  prevent  hurt  to  the  passenger.  It  is  clear  that 
this  is  not  the  liability  of  an  insurer.  This  duty  of  care  applies  to 
premises,  appliances,  and  servants  and  in  some  instances  goes 
even  beyond  these  and  requires  protection  against  wrongs  com- 
mitted on  its  premises  by  outside  parties  not  in  the  employ  of  the 
carrier. 

According  to  a  large  number  of  authorities,  amounting  perhaps 
to  the  weight  of  authority,  the  duty  as  to  care  and  protection  of 
passengers  while  on  the  premises  of  the  company,  but  not  being 
actually  transported  is  limited  to  exercise  of  reasonable  care. 

All  authorities  concur  that  during  the  transportation,  that  is, 
from  the  time  the  passenger  enters  the  vehicle  of  the  carrier  until 
he  alights  therefrom  and  during  the  process  of  entering  and 


PUBLIC   UTILITIES   AND  PRIVATE  PROPERTY.  423 

alighting,  the  carrier  owes  the  highest  practicable  degree  of  care 
so  far  as  premises,  equipment,  and  employees  are  concerned.  The 
degree  of  care  as  to  protection  from  interference  by  third  persons 
even  while  in  the  vehicles  of  the  carrier  is  frequently  stated  as 
reasonable  care. 

Passing  to  the  carriage  of  freight,  we  find  the  general  rule  as 
to  safety  is  absolute,  though  subject  to  five  exceptions.  It  may  be 
stated  thus:  It  is  the  duty  of  a  common  carrier  of  freight 
to  transport  safely  all  freight  tendered  to  it  within  the  line  of  its 
business  and  to  deliver  the  same  uninjured  at  the  place  of  des- 
tination. It  is  customary  to  add  within  a  reasonable  time.  This 
duty  is  included  in  the  requirements  of  promptness  which  have 
already  been  considered. 

This  doctrine  makes  the  carrier  an  insurer  of  the  safe  delivery 
of  the  freight  subject  to  its  right  to  be  relieved  from  liability,  if 
it  can  show  that  the  injury  resulted  from  any  one  of  the  causes 
recognized  in  the  several  exceptions.  It,  therefore,  follows  that 
in  a  suit  for  failure  to  deliver  or  for  delivery  in  an  injured  con- 
dition, the  shipper  need  only  prove  the  fact  of  shipment  and  non- 
delivery or  injury  to  the  thing  and  this  fixes  liability  upon  the 
carrier  unless  it  pleads  and  proves  affirmatively  that  the  destruc- 
tion or  injury  comes  within  one  of  the  recognized  exceptions. 

These  exceptions  are : 

(1)  That  the  thing  was  injured -or  destroyed  by  the  act  of  God. 

(2)  That  it  was  injured  or  destroyed  by  a  public  enemy. 

(3)  That  it  was  injured  or  destroyed  by  some  inherent  vice  or 
defect  in  the  thing  shipped. 

(4)  That  it  was  injured  or  destroyed  by  the  fault  of  the  one 
making  the  claim  against  the  company  or  by  some  one  for  whose 
conduct  he  is  responsible. 

(5)  That  the  thing  was  taken  from  the  carrier  by  authority  of 
law. 

No  Unjust  Discrimination. — A  common  carrier  must  serve 
without  unjust  discrimination  all  who  desire  to  patronize  him. 
The  law  does  not  forbid  all  discrimination.  This  would 
be  to  require  an  impossibility.  It  is,  however,  imperative  that 
no  discrimination  which  is  unjust  or  unreasonable  shall  be 
made.  This  is  one  of  the  most  important  doctrines  regarding 
common  carriers.    It  is  the  very  essence  of  their  duty.    Control- 


424  AMERICAN   ELEMENTARY   LAW. 

ling  as  they  do  such  important  activities  and  means  by  which  they 
could  give  such  great  advantages  to  any  favored  locality  or  per- 
son, and  could  do  such  great  injury  to  localities  or  persons  upon 
whom  they  impose  undue  burdens,  it  is  of  prime  importance  that 
the  law  shall  require  just  and  impartial  treatment  of  all  their 
patrons. 

This  duty  of  uniformity  of  treatment  applies  to  the  entire  con- 
duct of  the  busin&ss  of  the  carrier.  It  must  afford  equal  facilities 
to  its  patrons  in  having  access  to  its  premises  and  vehicles.  It 
must  not  unjustly  discriminate  between  them  as  to  the  time  and 
manner  of  receiving  passengers  and  freight  or  of  handling  either, 
but  must  accord  to  each  and  every  patron  the  same  fair  opportun- 
ity that  is  afforded  to  the  most  favored. 

While  the  foregoing  statements  are  correct  it  is  only  unjust 
discrimination  that  is  forbidden.  Equality  of  opportunity  and  of 
service  and  not  identity  of  treatment  is  what  the  law  demands, 
hence  carriers  are  not  forbidden  to  make  reasonable  and  just  dis- 
criminations. 

If  two  persons  should  each  come  to  the  same  freight  depot  at 
the  same  time,  one  desiring  to  ship  live  stock  and  the  other  fur- 
niture, the  law  would  neither  require  the  carrier  to  rush  through 
the  furniture  within  the  same  time  that  the  live  stock  should  be 
carried  and  delivered,  nor  would  it  require  that  the  live  stock  be 
held  back  to  the  same  speed  of  transportation  as  would  be  reason- 
able for  the  furniture.  On  the  contrary,  it  would  require  the 
carrier  to  deal  with  each  of  these  shipments  according  to  its  kind, 
hurrying  through  the  live  stock  and  handling  the  furniture  more 
slowly. 

Again,  all  discrimination  as  to  charges  for  service  is  not  unlaw- 
ful. Because  a  carrier  charges  passengers  for  short  distances 
three  cents  a  mile  does  not  make  it  unlawful  for  it  to  sell  tickets 
for  long  journeys  at  a  less  rate;  nor  because  freight  in  a  small 
package *is  charged  a  certain  rate  per  pound  is  it  obligatory  to 
charge  the  same  rate  on  car  load  lots. 

These  illustrations  will  show  that  it  is  not  identity  of  charge 
that  is  required,  but  that  it  is  unjust  discrimination  that  is  for- 
bidden. 

"When  it  is  said  that  common  carriers  must  serve  without  dis- 
crimination all  who  desire  transportation  for  themselves  or  for 


PUBLIC   UTILITIES  AND   PRIVATE   PROPERTY.  425 

their  freight  and  must  observe  a  high  degree  of  care  for  the  safety 
of  the  passenger  and  insure  the  safety  of  the  freight  subject  to 
specified  exceptions,  we  have  announced  apparently  conflicting 
and  impracticable  rules,  for  it  not  infrequently  happens  that  in- 
discriminate service  for  all  would  jeopardize  the  safety  of  all. 

For  example,  a  passenger  coach  with  numerous  passengers 
aboard  arrives  at  a  station  and  a  man  infected  with  smallpox  of- 
fers to  enter  the  car.  If,  because  the  company  has  received  the 
other  passengers,  it  is  therefore  compelled  to  accept  and  carry  him, 
it  would  jeopardize  the  health  and  safety  of  all  passengers  then 
on  the  car  and  all  who  might  subsequently  enter  it.  Under  such 
conditions  the  law  says  that  the  infected  passenger  is  not  fit  for 
transportation,  thus  discriminating  between  persons  who  are 
sound  and  those  infected  or  suffering  from  contagious  disease. 
This  is  not  only  just  but  is  imperatively  demanded  by  the  carrier's 
duty  to  protect  passengers  already  in  its  custody.  So  we  see 
the  duty  to  carry  passengers  is  not  to  carry  all  persons  but  all 
persons  not  in  such  condition  as  to  be  dangerous  to  other  passen- 
gers. The  source  of  danger  need  not  be  disease.  If  one  offering 
himself  for  transportation  is  drunk  and  disorderly,  or  disorderly 
without  being  drunk,  he  may  be  rejected  without  liability  on  the 
part  of  the  carrier. 

This  doctrine,  so  far  as  applicable,  controls  also  shipments  of 
freight.  No  one  could  legally  demand  of  a  common  carrier  that 
it  receive  nitro  glycerine  or  dynamite  for  transportation  in 
an  ordinary  car  with  ordinary  freight,  unless  it  had  been  spe- 
cially and  most  carefully  prepared  for  such  transportation.  To 
accept  it  in  any  other  condition  would  be  to  jeopardize  the  nitro 
glycerine  or  dynamite  itself,  everything  in  the  car  with  it,  the  car 
containing  it,  and  possibly  the  whole  train  and  train  crew.  This 
would  be  unreasonable  and  unjust  and  the  law  refuses  to  make 
any  such  requirement. 

Charges. — The  charges  of  common  carriers  must  be  uniform 
for  identical  service  and  must  be  reasonable  in  amount. 

"What  we  have  just  said  with  regard  to  discrimination  applies 
here.  The  charge  must  be  the  same  for  the  identical  service  un- 
der identical  conditions,  but  changes  in  the  nature  or  extent  of 
the  service,  or  in  the  facilities  furnished,  or  the  conditions  under 


426  AMERICAN   ELEMENTARY  LAW. 

which  the  service  is  rendered  very  often  require  correspond- 
ing changes  in  the  charges. 

The  difference  between  first  and  second  class  passage  on  steam- 
ships is  everywhere  recognized.  The  passenger  in  the  hold  and  the 
one  in  the  state  room  of  the  same  ship,  are  carried  from  the  same 
port  over  the  same  route  to  the  same  port,  but  there  are  great  dif- 
ferences between  the  comfort  and  facilities  that  they  have  en- 
joyed. The  steamship  company  having  given  to  the  one  appre- 
ciably better  service  than  it  did  to  the  other  is  legally  entitled  to 
charge  correspondingly  more.  The  same  is  true  within  limits  as 
to  all  other  common  carriers. 

There  is  even  greater  latitude  for  difference  in  charges  upon 
different  kinds  of  freight.  Some  articles  can  be  carried  in  rough 
cars  and  will  stand  rough  handling  and  scarcely  be  said  to  be  lia- 
ble to  loss  or  injury  during  the  trip,  while  others  are  delicate,  re- 
quiring specially  prepared  cars  and  special  care  and  attention 
during  the  transit,  and  notwithstanding  all  these  precautions  are 
still  liable  to  serious  injury  while  en  route. 

It  is  clear  that  if  the  law  is  to  be  just  it  must  take  all  these  dif- 
ferent matters  into  account  in  determining  the  reasonableness  of 
freight  charges,  and  it  accordingly  does  so. 

Courtesy. — Courtesy  is  usually  regarded  more  as  a  social  than 
a  legal  duty  but  there  can  be  no  doubt  that  it  is  legally  incumbent 
upon  common  carriers  and  their  servants  to  treat  courteously  all 
their  patrons. 

There  is  very  little  litigation  in  which  the  sole  charge  against 
the  carrier  or  its  servants  is  lack  of  courtesy  but  the  issue  often 
arises  incidentally  and  discourteous  and  rude  treatment  are  often 
condemned  in  the  opinions  of  the  judges  and  are  taken  into  ac- 
count in  estimating  the  amount  of  damage  recoverable.  This  is 
particularly  true  as  to  female  passengers  and  in  cases  of  unlaw- 
ful ejection  of  passengers. 

Right  to  Change  Legal  Duties  by  Contract. 

The  duties  of  common  carriers  as  hereinbefore  discussed  are 
those  which  exist  at  Common  Law.  It  will  be  observed  that  many 
of  these  are  duties  in  which  the  public  as  well  as  particular  ship- 
pers are  interested.  Where  the  duty  is  one  of  real  public  concern, 
such  as  uniformity  and  reasonableness  in  charges,  the  duty  can- 
not be  varied  by  agreement  in  such  way  as  to  prejudice  the  public 


PUBLIC   UTILITIES   AND   PRIVATE  PROPERTY.  427 

interests.  The  effect  of  the  agreement  as  between  the  parties, 
when  this  is  dependent  entirely  npon  the  Common  Law,  is  this; 
if  the  agreement  involves  no  breach  of  public  duty  and  is  in  it- 
self, under  all  the  circumstances  of  the  case,  reasonable  and  just, 
as  between  the  parties  it  will  be  enforced.  No  agreement  between 
a  common  carrier  and  a  patron  which  is  contrary  to  the  best  in- 
terests of  the  public,  or  which  is  in  itself  unreasonable,  can  be  en- 
forced. 

There  is  practical  uniformity  in  the  decisions  of  the  Common 
Law  Courts  on  the  proposition  that  the  agreement  must  be  rea- 
sonable in  the  eyes  of  the  law  in  order  to  be  valid,  but  there  is 
marked  difference  in  the  application  of  this  doctrine  by  different 
courts  to  substantially  the  same  states  of  facts. 

To  illustrate,  if  a  person  desiring  to  ship  animals  tenders  them 
for  shipment  and  in  the  bill  of  lading  or  contract  of  shipment 
agrees  that  the  value  of  the  animals  does  not  exceed  one  hundred 
dollars  per  head,  and  the  contract  stipulates  that  the  freight 
charges  are  based  on  this  agreement,  the  Supreme  Court  of  the 
United  States  holds  that  the  agreed  value  is  binding  and  if  one 
or  more  of  the  animals  are  killed  in  transit,  even  through  the 
negligence  of  the  company,  the  shipper  can  not  recover  more  than 
one  hundred  dollars  for  each  animal  that  was  killed,  although  in 
point  of  fact  they  may  have  been  worth  much  more.  This  court 
says  that  the  shipper,  having  agreed  to  this  value  and  having  ac- 
cepted the  freight  charge  based  thereon  and  thus  having  gotten 
the  benefit  of  the  agreement,  cannot  reasonably  be  heard  to  object 
to  the  agreement  when  it  injures  him. 

On  the  other  hand,  some  of  the  Supreme  Courts  of  the  States 
hold  that  it  is  always  unreasonable  to  permit  a  party  to  under- 
take to  relieve  himself  by  agreement  made  before  the  commission 
of  a  wrong  from  the  consequences  of  such  wrong,  and  therefore, 
if  the  killing  of  the  animals  resulted  from  the  negligence  of  the 
carrier,  it  cannot  take  advantage  of  the  agreement  to  limit  its  lia- 
bility to  a  sum  less  than  the  damage  directly  resulting  from  its 
own  breach  of  legal  duty. 

Control  by  Federal  and  State  Governments. 

The  Supreme  Court  of  the  United  States,  by  an  unbroken  line 
of  decisions,  has  settled  that  the  transportation  of  passengers  and 
freight  by  common   carriers  is  commerce.    Transportation   be- 


428  AMERICAN   ELEMENTARY   LAW. 

tween  different  States,  or  from  a  State  to  a  foreign  country  is, 
therefore,  within  the  jurisdiction  of  the  Federal  Government  un- 
der the  Inter-State  Commerce  clause  of  the  Federal  Constitution. 
Transportation  entirely  within  one  State  is  domestic  commerce 
and  within  the  regulation  of  that  State. 

Transportation  in  which  the  point  of  shipment  is  in  one  State 
and  the  point  of  destination  in  another  is  inter-State  commerce. 
Transportation  which  has  its  point  of  shipment  and  its  point  of 
destination  in  the  same  State  is  ordinarily  domestic  commerce. 

If,  however,  during  any  part  of  the  carriage  the  freight  shall 
be  carried  out  of  the  State  in  which  it  was  received,  and  into  an- 
other State,  or  should  be  carried  out  of  the  State  in  which  it  was 
received  onto  the  high  seas,  the  shipment  would  be  inter-State  or 
foreign  commerce,  according  to  the  facts,  even  though  the  point 
of  destination  was  within  the  same  State  as  the  place  of  shipment. 

Congressional  Action. — Acting  under  the  Inter-State  Com- 
merce Clause,  Congress  has  passed  many  laws  regulating  the 
duties  and  liabilities  of  Common  carriers  engaged  in  inter-State 
and  foreign  commerce.  The  principal  one  of  these  is  the  statute 
creating  the  Inter-State  Commerce  Commission  and  its  various 
amendments.  The  general  effect  of  this  Congressional  regulation 
is  to  limit  the  powers  and  enlarge  the  liabilities  of  the  common 
carriers. 

State  Action. — In  many  of  the  States  there  are  statutes  modi- 
fying the  Common  Law  liabilities  of  common  carriers.  In  almost 
every  instance  the  effect  of  these  statutes  is  to  restrict  the  powers 
of  carriers  engaged  in  domestic  commerce  to  a  greater  extent  than 
is  done  by  the  Common  Law. 

Among  the  most  common  of  these  statutes  are  those  creating 
State  Railroad  Commissions  and  those  which  forbid  common  car- 
riers to  make  any  contract  limiting  in  any  wise  their  duties  and 
liabilities  as  fixed  by  the  Common  Law. 

The  statutes  creating  State  Railroad  Commissions  in  their  gen- 
eral outlines  have  been  held  constitutional.  Objections  have  been 
successfully  made  to  some  of  the  particular  provisions  of  some  of 
the  acts.  The  State  statutes  denying  the  power  of  the  common 
carriers  to  limit  their  Common  Law  liability  are  uniformly  held 
to  be  valid  so  far  as  they  affect  domestic  carriage.  They  have  no 
effect  ordinarily  on  inter-State  or  foreign  transportation. 


PUBLIC   UTILITIES   AND   PRIVATE   PROPERTY.  429 

Agreements  to  Carry  Beyond  Carrier's  Own  Line. — If  a  nat- 
ural person  engage  in  the  business  of  common  carriage  he  can 
designate  the  locality  in  which  he  will  operate  and  the  route  over 
which  he  will  carry.  If  the  carrier  be  a  corporation,  its  locality 
and  route  is  indicated  in  its  charter.  Strictly  speaking,  it  is  a  car- 
rier only  within  the  territory  or  over  the  route  specified  therein. 

It  is  apparent,  however,  that  both  the  interests  of  the  public 
and  of  the  various  common  carriers,  particularly  railroad  and 
steamship  companies,  require  co-operation  among  the  different 
companies  and  promptness  and  continued  liability  in  the  trans- 
portation of  freight  over  connecting  lines. 

Questions  necessarily  arose  in  shipments  that  were  to  pass  over 
more  than  one  line  as  to  the  respective  rights  and  duties  of  the 
different  carriers  and  the  shipper.  It  has  been  held,  with  reason- 
able uniformity,  that  the  legal  duty  of  a  railroad  company  only 
requires  it  to  carry  freight  or  passengers  over  its  own  line  of  road 
and  to  deliver  it  or  them  safely  to  the  next  connecting  carrier.  As 
a  legal  proposition  this  seems  to  be  satisfactory,  but  as  a  matter 
of  business  the  shipper  is,  or  at  least  is  supposed  to  be,  largely  at 
the  mercy  of  the  respective  carriers.  Constant  effort  has,  there- 
fore, been  made  by  the  courts,  and  in  a  good  many  States  by  the 
Legislatures,  to  fix  upon  the  initial  company  the  liability  of 
a  common  carrier  over  the  entire  route. 

So  far  as  the  matter  rested  upon  the  Common  Law  doctrine  it 
seems  clear  that  no  one  of  the  connecting  lines  is  a  common  car- 
rier of  the  freight  while  in  the  possession  of  or  on  the  line  of  any 
of  the  other  roads,  unless  it  has  agreed  to  become  liable  as  a  com- 
mon carrier  over  the  entire  route  of  carriage.  This  seems  both 
just  and  legal. 

It  is  very  commonly  held  that  any  one  carrier  in  the  line  of 
transportation  may,  by  contract,  assume  the  liability  of  a  common 
carrier  over  the  entire  route.  This  doctrine  having  been  estab- 
lished it  necessarily  led  to  questions  of  construction  of  contracts 
between  different  carriers  in  order  to  ascertain  whether  or  not 
each  carrier  is  responsible  only  for  damage  occurring  on  its  own 
line  or  for  that  occurring  anywhere  in  transit.  In  some  States  the 
Legislatures  have  taken  up  the  matter,  and  have  passecf  statutes 
providing  in  substance,  that  any  contract  which  fixes  a  through 
rate  of  charge  over  all  the  lines,  should  be  regarded  as  fixing 


430  AMERICAN  ELEMENTARY  LAW. 

Common  Law  liability  upon  each  of  the  lines  for  damages  occur- 
ring anywhere  on  the  route.  Some  of  these  statutes  have  been 
held  constitutional.  As  an  original  question  their  constitutionality 
seems  doubtful. 

We  may  state  the  law  on  this  subject,  therefore,  as  follows: 

(1)  A  railroad  company  is  not  compelled  by  law  to  act  as 
a  common  carrier  or  assume  the  liabilities  of  a  common  carrier  for 
freight  or  passengers  after  it  or  they  have  passed  off  of  its  line 
and  have  been  received  by  a  connecting  carrier. 

(2)  A  railroad  company  may  lawfully  assume  such  liability  by 
contract. 

•  (3)  The  tendency  of  the  courts  is  to  hold  contracts  for  trans- 
portation which  contemplate  continuous  carriage  over  separate 
lines  of  road  as  through  contracts,  and  hence  to  hold  anyone  of 
the  roads  to  the  Common  Law  liability  of  a  common  carrier  for 
injuries  occurring  anywhere  during  the  transit. 

(4)  In  some  States,  statutes  have  been  passed  declaring  that 
shipments  contemplating  continuous  transportation  for  through 
rates  of  freight  shall  be  regarded  as  fixing  Common  Law  liability 
on  each  of  the  roads  for  injuries  occurring  anywhere  on  the  route. 
In  the  absence  of  a  contractual  obligation,  either  actual  or  im- 
posed by  construction  of  law,  each  of  several  connecting  lines  of 
road  is  responsible  as  a  common  carrier  only  for  injuries  occurring 
on  its  own  line.  The  difficulty,  particularly  in  shipments  of 
freight,  in  proving  just  where  the  hurt  occurred  often  works 
quite  a  hardship  on  the  shipper.  To  meet  this  some  of  the  courts 
have  undertaken  to  announce  certain  presumptions  as  applicable 
to  cases  of  this  sort.  Some  hold  that  in  the  absence  of  proof 
it  will  be  presumed  that  the  damage  occurred  on  the  line  of  the 
last  road  over  which  the  shipment  passed ;  others  intimate,  if  they 
do  not  hold,  that  it  will  be  presumed  that  the  damage  occurred  on 
the  first  road.  "Where  any  such  presumption  is  established  by  the 
local  law  it  may  be  safely  relied  upon.  Unless  it  is  thus  clearly 
established,  the  party  claiming  damage  must  prove  definitely 
upon  what  line  and  when  and  how  the  injury  was  occasioned  in 
order  to  recover. 

Telegraph  and  Telephone  Companies. 

One  of  the  most  essential  needs  of  the  public  is  the  transmission 
of  information.  One  of  the  most  extensive  and  beneficial  branches 


PUBLIC  UTILITIES  AND  PRIVATE  PROPERTY.  431 

of  the  Federal  Government  is  the  Post  Office  Department. 
Through  it  the  Federal  Government  acts  directly  in  carrying 
written  and  printed  matter,  not  for  the  purpose  of  changing  the 
locality  of  the  material  upon  which  the  information  is  placed,  but 
for  the  sole  purpose  of  communicating  the  information  placed 
thereon. 

Long  after  the  establishment  of  the  Post  Office  Department  the 
art  of  communicating  thought  by  means  of  electricity  was 
developed.  This  came  as  the  result  of  private  industry  and  ca- 
pacity and  at  private  expense.  The  appliances  used  for  this  pur- 
pose were  of  such  kind  that  the  government  issued  patents  to  pro- 
tect the  inventors  in  their  use.  Thus  the  business  of  communicat- 
ing by  telegraph  began  as  a  private  business  carried  on  by 
instrumentalities  owned  by  private  individuals  and  protected  by 
monopolistic  privileges.  It  was  soon  demonstrated  that  this 
method  of  quick  transmission  of  ideas  was  safe  and  practicable. 
The  business  world  increased  its  use  of  the  telegraph  and  the  tel- 
egraph companies  responded  by  increase  and  betterment  of  facil- 
ities. This  process  of  development  has  gone  on  and  the  commer- 
cial world  has  so  adjusted  itself  and  its  methods  to  this  rapid 
transmission  of  information  that  it  is  indisputable  that  the  tele- 
graph is  now  a  public  utility. 

In  recognition  of  this  fact  a  number  of  years  ago  the  English 
Government  took  charge  of  the  business  of  telegraphing  in  Eng- 
land and  all  telegraph  and  telephone  lines  in  the  island  of  Great 
Britain  are  owned  and  operated  by  the  government.  This  method 
of  government  ownership  has  not  been  adopted  in  the  United 
States  and  these  businesses  are  conducted  by  private  persons 
almost  invariably  by  private  corporations  chartered  for  such 
purpose. 

The  public  nature  of  the  business  and  its  effects  upon  the  inter- 
ests of  the  community  at  large  demonstrate  that  these  enterprises 
are  public  utilities.  As  such,  they  owe  to  the  public  each  of  the 
six  duties  hereinbefore  enumerated. 

There  is  a  controversy  still  unsettled  as  to  whether  or  not  these 
companies  are  common  carriers.  The  better  opinion  is  that  they 
are  not.  They  do  not  carry  any  corporeal  thing.  Their  sole 
function  is  to  transmit  information,  which,  of  course,  exists  only 
in  thought.    The  material  part  of  the  message,  that  is  to  say  the 


432  AMERICAN   ELEMENTARY   LAW. 

paper  with  the  words  written  on  it,  is  not  sent  but  remains  in  the 
receiving  office.  By  aid  of  electricity  the  words  represented  by 
the  written  characters  are  transmitted  by  sound  to  the  ear  of  the 
person  at  the  receiving  instrument,  so  that  it  is  only  sound  em- 
bodying thought,  or  thought  as  embodied  in  sound,  that  is  trans- 
mitted. This  would  seem  to  be  conclusive  against  the  proposition 
that  these  companies  are  common  carriers.  This,  however,  does 
not  affect  the  fact  that  they  are  public  utilities  owing  to  the  pub- 
lic all  the  duties  above  enumerated  and  are  subject  to  special  reg- 
ulation and  control  with  regard  thereto. 

While  the  duties  of  all  parties  subserving  public  uses  are  the 
same  the  emphasis  or  stress  is  laid  differently  according  to  the 
nature  of  the  service.  As  we  have  found,  great  attention  is  given 
to  the  safety  of  the  thing  transmitted  in  the  case  of  common  car- 
riers, and  the  time  of  delivery  is  not  particularly  emphasized.  In 
the  case  of  telegraph  and  telephone  companies,  emphasis  is  laid 
upon  the  duty  of  promptness.  All  the  other  duties  rest  upon 
them  and  must  be  faithfully  observed,  but  the  need  of  the  public 
which  these  companies  specially  meet  is  rapid  transmission  of  in- 
formation, and  this  need  these  companies  must  meet  or  be  subject 
to  liability.  It  is  true  that  as  to  the  time  of  delivery,  the  language 
in  which  the  rule  is  stated  is  the  same  with  reference  to  common 
carriers  and  telegraph  companies.  The  service  must  be  rendered 
within  a  reasonable  time.  But  the  lapse  of  a  period  of  time,  which 
would  be  perfectly  reasonable  and  therefore  legal  in  carrying 
freight,  might  well  be  very  unreasonable  and  hence  illegal  in  the 
transmission  of  a  dispatch. 

Reasonableness  is  always  to  be  determined  by  the  nature  of  the 
thing  undertaken  and  the  facts  of  the  particular  case.  Men  do 
not  resort  to  the  use  of  telegraphs  and  telephones  to  transmit  in- 
formation that  will  await  the  slower  processes  of  the  mail.  It  is 
because  quickness  is  of  prime  importance  that  these  agencies  are 
employed.  Hence  it  is  that  as  to  these  companies  the  law  is  quite 
insistent  upon  the  duty  of  promptness. 

It  is  true  that  the  law  insists  on  reasonable  and  proper  discharge 
of  each  of  the  other  duties.  The  service  must  be  efficient  in 
every  other  respect  as  well  as  with  regard  to  time.  It  should  be 
rendered  with  reasonable  safety  to  the  known  rights  of  the  pa- 
tron.   As  to  telegraph  companies  this  requires  that  the  message  as 


PUBLIC    UTILITIES   AND   PRIVATE   PROPERTY.  433 

delivered  by  the  sender  be  transmitted  safely ;  that  is,  just  as  de- 
livered to  the  company  at  its  receiving  office.  Failure  to  transmit 
correctly  makes  out  a  prima  facie  case  of  liability  against  the 
company  for  any  damage  directly  resulting  therefrom.  Still  the 
company  can  relieve  itself  from  this  liability  by  showing  that  it 
exercised  reasonable  care  in  its  effort  at  transmission,  and  that 
the  change  in  the  message  was  not  due  to  any  defect  in  its  appli- 
ances nor  to  any  fault  by  its  servants. 

Telephone  companies,  as  usually  operated,  do  not  undertake  to 
transmit  messages  through  their  employes  but  only  to  furnish 
proper  appliances  and  connections  through  which  their  patrons 
may  communicate  with  each  other.  For  errors  in  transmission 
due  to  the  conduct  of  either  patron,  the  telephone  company  is  not 
responsible.  If,  however,  its  instruments  or  line  are  defective  or  if 
the  company  or  their  agents  fail  to  use  proper  care  in  finding  the 
parties  called  for  they  are  responsible  for  any  directly  resulting 
damage. 

These  companies  must  not  unjustly  discriminate  between  pa- 
trons desiring,  service.  The  principles  regarding  discrimination 
are  the  same  here  as  with  regard  to  common  carriers  which  have 
already  been  discussed.  The  application,  of  course,  differs  with 
the  differing  facts,  but  the  doctrines  are  the  same. 

These  companies  are  subject  to  governmental  control  both  as  to 
uniformity  and  amount  of  their  charges.  Identity  of  service  ren- 
dered under  identical  conditions  must  be  charged  for  at  uniform 
prices,  which  must  in  all  cases  be  reasonable.  Appreciable  differ- 
ence in  service,  or  the  conditions  under  which  it  is  rendered,  will 
justify  difference  in  charges.  But  the  requirement  as  to  reason- 
ableness still  applies. 

These  companies  owe  to  their  patrons  the  duty  of  courteous 
treatment. 

We  have  treated  telegraph  and  telephone  companies  together 
because  of  their  practical  legal  identity.  After  most  careful  in- 
vestigation the  English  courts  announced  the  doctrine  that  tele- 
graph and  telephone  companies  are  engaged  in  the  business 
of  transmitting  intelligence  by  sound  by  means  of  electricity  and 
this  identity  of  purpose  and  of  means  make  the  two  businesses  the 
«ame  to  all  intents  and  purposes,  notwithstanding  different  appli- 
es 


434  AMERICAN   ELEMENTARY  LAW. 

ances  and  different  methods  of  using  electricity.    The  American 
courts  hold  the  same  doctrine. 

Other  Public  Utilities. 

The  duties  above  enumerated  and  the  foregoing  discussion  of 
them  as  regards  common  carriers,  and  telegraph  and  telephone 
companies,  mutatis  mutandis,  apply  to  all  other  public  utilities, 
such  as  water  works,  gas  works,  sewers,  etc. 

PRIVATE  PROPERTY  CHARGED  WITH  PUBLIC  USES. 

Besides  the  use  of  public  property  by  the  public  for  public  pur- 
poses, and  the  use  of  private  property  for  public  purposes  when 
such  property  has  consciously  been  dedicated  by  its  owner  to  such 
purposes,  as  has  been  discussed  in  the  preceding  portions  of  this 
chapter,  according  to  many  authorities  private  property  may 
be  used  for  such  purposes  or  in  such  ways  by  the  owner,  as  against 
his  will,  to  charge  the  property  with  a  public  use,  and  thus  sub- 
ject the  charges  for  such  use  to  regulation  by  governmental 
authority. 

To  just  what  uses  and  for  just  what  purposes  the  owner  must 
apply  his  property  in  order  to  thus  affect  it,  is  difficult  to  ascer- 
tain from  the  cases.  The  language  used  in  many  of  them  is  quite 
broad  and  would  seem  to  go,  if  it  does  not  go,  to  dangerous 
lengths,  jeopardizing  materially  the  rights  of  owners.  The  actual 
decisions,  however,  when  tested  by  the  facts  and  the  actual  ques- 
tions raised  and  the  points  really  decided,  are  not  so  broad. 

Thus,  in  the  case  of  Munn  v.  the  People  of  Illinois  (94  U.  S. 
113),  Chief  Justice  Waite  uses  this  language: 

"Property  does  become  clothed  with  a  public  interest  when 
used  in  a  manner  to  make  it  of  public  consequence  and  to  affect 
the  community  at  large.  When,  therefore,  one  devotes  his  prop- 
erty to  a  use  in  which  the  public  has  an  interest,  he,  in  effect, 
grants  to  the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good,  to  the  extent  of  the 
interest  he  has  thus  created.  He  may  withdraw  his  grant  by  dis- 
continuing the  use ;  but  so  long  as  he  maintains  the  use,  he  must 
submit  to  control." 

Here  the  broad  statement  is  made  that  property  becomes  sub- 
ject to  public  control  for  the  common  good  whenever  it  is  used  in 


PUBLIC   UTILITIES  AND  PRIVATE  PROPERTY.  435 

a  manner  to  make  it  of  public  consequence  and  to  affect  the  com- 
munity at  large.  This  is  the  test  given  by  which  to  determine  the 
right  of  the  public  to  fix  maximum  charges  for  the  use  of  private 
property.  Whenever  it  is  so  used  the  owner  has  subjected  him- 
self to  the  legislative  power  to  fix  the  price  which  he  may  charge 
for  such  use.  Unless  it  is  so  used,  the  charges  are  a  matter  of 
private  concern  to  be  fixed  by  agreement. 

It  would  be  exceedingly  difficult  to  go  through  the  list  of  occu- 
pations and  businesses  in  which  men  are  engaged  and  determine 
by  this  test  to  which  class  a  great  many  of  them  belong/  To  what 
extent  the  use  must  be  a  public  consequence  or  to  what  extent  it 
must  affect  the  community  at  large,  is  not  stated  and  would  be 
difficult  of  statement.  *So,  this  language,  considered  by  itself, 
affords  but  little  help  in  the  actual  determination  of  the  question. 

If,  however,  we  read  the  language  in  the  light  of  the  facts  of 
the  case  and  of  the  issues  presented  to  the  court  and  put  upon  it 
the  limitation  thus  arising  from  its  legal  context,  a  good  deal  of 
the  uncertainty  disappears. 

In  this  case  a  few  grain  elevators  were  handling  all  the  vast 
output  of  grain  for  five  or  six  of  the  Northwestern  States  as  it 
passed  through  Chicago  to  the  Atlantic  seaboard.  The  proprie- 
tors of  these  elevators  had  ceased  to  compete  and  had  for  some 
time  fixed  the  charges  for  storing  and  handling  grain  by  them  by 
agreement  to  be  operative  for  a  term  of  one  year.  The  situation 
gave  to  these  proprietors  a  practical  monoply  in  the  handling  of 
grain  in  Chicago.  By  their  voluntary  act,  in  the  pre-arrangement 
of  uniform  charges  they  had  changed  the  possible  monopoly  into 
an  actual  one.  It  is  this  monopolistic  arrangement  that  caused 
the  Legislature  of  Illinois  to  enact  a  law  fixing  maximum  charges. 

These  facts  limit  the  broad  language  of  the  court  materially. 
The  real  doctrine  of  a  case  is  always  to  be  determined  by,  and 
limited  to,  the  facts  and  issues  before  the  court.  Thus  limited  this 
case  teaches  that  private  parties,  who  find  themselves  so  circum- 
stanced that  by  combination  they  can  obtain  a  monopoly  in  hand- 
ling a  large  part  of  a  commodity,  that  is  essential  to  the  life  and 
well  being  of  the  public,  and  who  avail  themselves  of  such  oppor- 
tunity and  enter  into  agreements,  fixing  charges  continuing  for 
long  terms,  thus  cutting  off  competition  among  themselves,  and 
so  practically  depriving  the  owners  of  such  commodities  who 


436  AMERICAN   ELEMENTARY   LAW. 

need  their  services  of  any  opportunities  to  fix  prices  by  agreement, 
thereby  subject  themselves  to  having  maximum  charges  fixed  by 
the  government. 

Thus  stated,  the  rule  is  just  and  in  keeping  with  ancient  doc- 
trines which  have  ever  been  against  monopolies. 

The  cases  sustaining  the  right  of  the  government  to  regulate 
charges  for  mills,  coaches,  ferries,  and  such  matters,  may  all  be 
referred  either  to  the  doctrine  controlling  the  cases  in  which  the 
owner  has  consciously  dedicated  his  property  to  a  public  use,  or  is 
exercising  some  public  prerogative  or  special  privilege  in  con- 
ducting it.  The  right  to  enact  usury  laws  stands  upon  a  special 
basis  historically  easy  of  explanation  and  practically  just  in  its 
operation.  But  this  special  regulation  should  not  be  taken  as  a 
basis  for  enlarging  the  doctrine  by  analogy. 

Whatever  difficulty  there  may  be  in  stating  the  doctrine  accu- 
rately and  in  such  way  as  to  afford  an  accurate  test  as  to  the  cases 
falling  within  it,  the  fact  remains,  that  there  is  such  a  doctrine 
and  that  it  is  possible  under  some  conditions  for  the  owner  so  to 
use  his  property  as  to  subject  his  right  to  charge  for  such  use  to 
regulation  by  law.  If  this  control  is  limited  to  cases  that  are 
practically  monopolistic  there  seems  to  be  no  element  of  danger  in 
it.  If,  however,  it  is  to  be  extended  to  cover  all  the  cases  which 
might,  by  ingenious  reasoning,  be  brought  within  the  broad  lan- 
guage of  some  of  the  opinions,  it  constitutes  a  serious  menace  to 
private  ownership. 


PART  IV. 
PROCEDURE. 


CHAPTER  I. 

LEGAL  SANCTIONS. 
Necessity  for. 

We  have  endeavored,  in  the  foregoing  pages,  to  present,  in  a 
very  general  way,  the  rules  of  being  and  conduct  prescribed  by 
the  sovereign  to  be  observed  by  all  persons  subject  to  its  author- 
ity. These  are  frequently  called  the  Substantive  Law.  We  have 
found  that  one  of  the  essential  ideas  of  law  is  authoritativeness ; 
that  it  is  a  rule  imposed  and  enforced  by  competent  authority. 

We  have  further  found  that  this  idea  is  carried  into  the  con- 
ception of  legal  rights  and  duties ;  that  the  first  always  carries 
with  it  capacity  to  control  by  law,  and  the  second,  subjection  to 
guch  control. 

This  control  is  made  possible  by  the  lawmaking  power  provid- 
ing sanctions,  that  is,  commendation  or  reward  for  conduct  con- 
forming to  legal  rule,  and  condemnation  and  penalty  for  conduct 
violating  legal  rule. 

The  legal  idea  of  sanction  includes  both  reward  and  penalty. 
This  is  larger  than  the  ordinary  view  which  is  limited  to  approval 
and  reward.  Without  such  sanctions  attempted  regulation  of 
conduct  would  lose  its  dignity  and  force  as  law  and  become  mere 
suggestion  or  advice.  Not  only  must  these  sanctions  be  deter- 
mined upon  and  announced,  but  they  must  also  be  actually  and 
practically  enforced.  This  enforcement  must  be  by  sovereignty 
itself. 

It  is  not  sufficient  to  suggest  rewards  and  penalties,  and  leave 
their  application  to  the  parties  interested.  This  would  lead  to 
endless  confusion  and  strife.    So,  to  meet  the  full  measure  of  its 


438  AMERICAN   ELEMENTARY   LAW. 

duty,  the  sovereign  must  provide  agencies  through  which  these 
sanctions  can  be  applied. 

These  agencies  are  called  courts.  As  their  purpose  is  to  apply 
legal  sanctions,  to  be  efficient  they  must  be  organized  with  refer- 
ence to  such  application,  and  must  be  given  such  members  and 
such  powers  as  will  enable  them  to  discharge  this  function  thor- 
oughly, promptly,  and  authoritatively. 

The  effective  and  just  application  of  legal  sanctions  involves 
three  processes : 

(1)  The  investigation  of  the  conduct  to  be  commended  or  con- 
demned, and  ascertainment  of  its  nature. 

(2)  The  comparison  of  this  conduct  with  the  rules  of  law  gov- 
erning conduct  of  that  kind  and  the  determination  of  its  con- 
formity or  nonconformity  thereto,  and  the  consequent  award  of 
approval  or  penalty. 

(3)  The  practical  enforcement  of  the  result  thus  arrived  at. 

Neither  of  these  can  be  omitted  and  the  plan  of  applying  sanc- 
tions be  complete.  As  the  end  ultimately  to  be  attained  is  the  ap- 
plication of  sanctions,  the  plan  for  accomplishing  it  will,  of  neces- 
sity, be  largely  influenced  by  the  nature  of  the  sanctions  to  be  ap- 
plied. 

Classification  of  Sanctions. 

As  rights  are  public  and  private,  so  are  the  sanctions  by  which 
they  are  protected.  The  sanctions  sustaining  public  rights  are 
provided  in  the  Criminal  Law,  and  those  sustaining  private  in 
Civil  Law.  The  general  idea  in  these  is  the  same ;  that  is,  to  en- 
force obedience  to  the  rules  of  conduct  prescribed  by  the  sover- 
eign, but  the  sanctions  appropriate  to  the  vindication  of  these 
different  classes  of  rights  differ  materially  in  their  nature,  each 
being  adapted  to  the  rights  sought  to  be  protected  or  the  wrongs 
sought  to  be  prevented.  They  have  a  good  many  points  in  com- 
mon, however,  and  these  may  be  profitably  considered  together 
before  proceeding  to  those  respects  in  which  they  differ. 

Sanctions  may  be  arranged  into  several  classes,  each  division 
being  based  on  different  characteristics.  The  first,  based  on  their 
general  nature,  is  into  rewards  and  penalties;  the  second,  based 
on  the  instrumentalities  through  which  afforded,  is  into  indi- 
vidual and  governmental;  the  third,  based  on  the  nature  of  the 


LEGAL  SANCTIONS  439 

rights  sought  to  be  vindicated,  into  public  and  private.  As  these 
classifications  are  based  on  different  characteristics,  the  general 
classes  are  not  mutually  exclusive ;  but,  as  the  divisions  in  each 
classification  are  based  on  the  same  characteristics,  these  are  mu- 
tually exclusive.  To  illustrate:  there  are  private  penalties 
afforded  through  governmental  agencies,  and  public  penalties 
afforded  by  the  same  means ;  but  there  are  no  such  things  as  pub- 
lic-private sanctions.  And  so  throughout  the  whole  of  the  differ- 
ent groupings. 

Rewards. — Rewards  are  recognitions  of  propriety.  Sometimes 
they  go  beyond  the  simple  fact  of  recognition,  and  include  some 
affirmative  benefit  bestowed  in  consequence  of  proper  conduct. 
They  rarely  take  this  latter  form  in  the  law,  though  in  exceptional 
cases  they  do,  as  in  case  of  payment  of  money  for  arrest  of  per- 
sons charged  with  heinous  offenses ;  but,  ordinarily,  the  approval 
of  proper  conduct  and  protecting  the  individual  in  the  benefits 
accruing  to  him  therefrom  is  as  far  as  the  law  goes.  This  recog- 
nition is  adequate,  and  promotive  of  the  general  interests.  The 
subject  is  theoretically  very  interesting,  but  is  of  no  special  prac- 
tical legal  value.  In  our  subsequent  treatment,  we  shall  deal  with 
penalties. 

Penalties. — It  is  manifest  that  simple  disapproval  of  improper 
conduct  would  be  entirely  inadequate  to  vindicate  the  right  vio- 
lated, or  to  deter  others  from  a  repetition  of  the  wrong,  so  in  its 
sanctions  for  wrongful  conduct  the  law  goes  further  and  inflicts 
punishments  proportioned  to  the  wrong. 

These  punishments  may  be  divided  into  preventive  penalties 
and  compensatory,  or  redressive  penalties.  The  first  are  designed 
to  prevent  some  particular  legal  wrong  then  imminent,  and  the 
second  to  give  remedy  for  wrongs  already  sustained  and  to  deter 
similar  wrongs.  This  division  runs  through  both  of  the  other 
general  classifications  given  above,  so  that  in  the  second  general 
classification  we  have  preventive  public  penalties  and  preventive 
private  penalties  applied  through  governmental  agencies;  in  the 
third,  the  division,  though  recognized,  is  less  important  as  prac- 
tically all  sanctions  applied  by  individuals  are  preventive,  re- 
dressive measures  by  individuals  in  their  own  behalf  being  rarely 
recognized  as  lawful. 


440  AMERICAN   ELEMENTARY   LAW. 

Sanctions  Applied  by  Individuals. 

We  have  considered  these  under  the  head  of  self-help,  as  in- 
volved in  remedial  rights,  and  refernce  to  that  head  is  made  for 
treatment  of  the  general  nature  and  extent  and  limitations 
of  remedies  of  this  kind.  In  Civil  Law  the  right  of  the  individual 
to  help  himself  without  calling  in  governmental  agencies,  is  con- 
fined almost  exclusively  to  preventive  remedies.  If  an  injury  of 
a  substantial  nature  to  a  legal  right  is  imminent,  or  from  the  cir- 
cumstances, as  they  exist,  such  injury  reasonably  appears  to  be 
imminent,  the  private  individual  may  use  all  reasonably  adapted 
and  proportioned  means  to  prevent  it.  He  can  not  go  beyond  that 
which  is  reasonably  adapted  to  the  threatened  wrong,  nor  go  be- 
yond the  point  of  adequate  protection,  but  this  far  he  may 
go  without  incurring  liability.  There  were  some  forms  of  redres- 
sive  remedy,  quite  extensively  recognized  at  one  time,  such  as  re- 
tention of  cattle  trespassing  on  land,  or  distraint  for  rent,  which 
have  fallen  largely  into  disuse,  having  been,  in  a  great  degree, 
superseded  by  simpler  and  less  dangerous  statutory  remedies 
through  governmental  agencies.  Enough  of  such  remedies  re- 
main to  justify  retaining  the  idea  that  some  legal  wrongs  may  be 
redressed  by  individual  action. 

In  Criminal  Law  there  is  a  slight  recognition  of  the  idea  of  re- 
dress by  individual  action.  This  is  manifested  in  two  ways: 
First,  by  express  extension  of  the  time  in  which  action  may  be  re- 
garded as  preventive,  as  the  provision,  in  case  of  homicide,  that  if 
one  interferes  to  prevent  the  killing  of  another  he  shall  be 
regarded  as  acting  on  the  defensive,  if  he  act  while  the  slayer  is 
inflicting  injury  on  his  victim,  although  the  mortal  wound  may 
already  have  been  given ;  or  in  case  of  robbery,  where  the  time  is 
extended  to  include  any  act  done  while  the  robber  is  in  the  pres- 
ence of  the  one  robbed,  without  having  separated  from  him  since 
the  offense. 

Second,  in  the  mitigation  of  the  penalty  for  offenses  when  the 
injured  party  had  given  serious  provocation  just  preceding  the  of- 
fense, as  when  one  has  used  insulting  language  toward  another 
and  the  latter  strikes  him  on  that  account. 

Sanctions  Applied  by  Governmental  Agencies 

As  the  law  provides  both  preventive  and  redressive  sanctions 
for  both  public  and  private  rights,  it  will  be  convenient  to  con- 


LEGAL  SANCTIONS.  441 

sider  these  in  combination,  rather  than  to  take  up  each  of  the  four 
classes  separately. 

Public. — The  sanctions  designed  to  protect  public  rights  are 
provided  by  the  Criminal  Law  and  their  enforcement  is  secured 
in  accordance  with  the  rules  known  as  Criminal  Procedure. 
These  sanctions  are  preventive  and  redressive.  The  idea  con- 
veyed by  the  word  preventive  here  is  not  the  tendency  to  discour- 
age crime  generally  by  punishing  wrongdoing  after  it  is  commit- 
ted. This  general  deterrent  effect  results  from  the  application  of 
redressive  sanctions.  The  thought  conveyed  by  the  word  preven- 
tive, in  this  connection,  is  the  coming  between  an  attempted  crime 
and  its  injurious  consequences  and  thus  preventing  the  infliction 
of  the  injury  designed  by  the  wrongdoer. 

Preventive  sanctions  in  criminal  law  are  few.  They  include  the 
abatement  of  public  nuisances,  destruction  of  counterfeiting  tools, 
and  other  similar  measures,  requiring  peace  bonds  from  persons 
threatening  the  life  or  safety  of  particular  individuals,  the  writ  of 
habeas  corpus  in  cases  of  false  imprisonment,  and  some  others. 

The  other  class  of  sanctions,  the  redressive,  or  punitory,  are 
punishments  inflicted  for  previous  violations  of  law.  They  can 
not  be  called  redressive  in  the  same  sense  that  the  term  is  used  in 
connection  with  private  rights.  The  latter  are  principally  com- 
pensatory, intended  to  put  the  injured  party  as  nearly  in  the  con- 
dition in  which  he  was  before  the  injury  as  can  be  done  practi- 
cally, while  the  former  can  not  accomplish  this  even  approx- 
imately, and  are  designed  to  punish  the  wrongdoer  and  demon- 
strate the  undesirability  of  wrongdoing. 

Punitory  sanctions,  or  punishments,  are  much  more  common 
and  varied.  They  are,  in  Common  Law  countries,  confined  prin- 
cipally to  the  following:  pecuniary  fines,  imprisonment,  death, 
forfeiture  of  property  rights,  or  of  civil  and  political  rights  and 
privileges,  transportation,  and  outlawry.  The  law-making  power 
considers  the  nature  of  the  wrong  being  dealt  with,  and  selects 
from  among  the  penalties  above  enumerated  the  one  or  more 
which  seems  most  just  and  effective,  and  fixes  that  as  the  punish- 
ment to  follow  upon  the  designated  wrong.  In  many  States  this 
right  to  choose  is  restricted  by  constitutional  provisions,  such  as: 
"No  citizen  shall  be  outlawed ;  nor  shall  any  person  be  trans- 
ported out  of  the  State  for  any  offense  committed  within  the 


442  AMERICAN   ELEMENTARY  LAW. 

State."  "No  conviction  shall  work  corruption  of  blood  or  for- 
feiture of  estate."  "Excessive  bail  shall  not  be  required  nor  ex- 
cessive fines  imposed,  nor  cruel  or  unusual  punishments  in- 
flicted." 

These  provisions  are  binding  on  all  departments  of  the  govern- 
ment, and  no  punishment  violative  of  any  of  them  can  be  imposed 
or  enforced. 

The  penalties  may  be  certain,  or  in  the  alternative,  as  a  pecu- 
niary fine  on  the  one  hand,  or  a  fine  or  imprisonment  on  the  other. 
They  may  be  fixed  in  extent  or  amount,  as  imprisonment  for  a 
fixed  time,  or  they  may  be  confined  within  designated  minimum 
and  maximum  limits,  as  a  fine  of  not  less  than  $50,  nor  more  than 
$250.  They  may  combine  two  or  more  kinds  of  punishment,  as  a 
pecuniary  fine  and  imprisonment,  or  imprisonment  and  forfeiture 
of  civil  rights,  etc.  In  short,  the  penalties  imposed  for  crimes 
may  be  such  as  the  legislature  may  select,  singly  or  in  combina- 
tion, subject  only  to  the  constitutional  limitations  existing  in  the 
particular  State. 

Remedies  to  Protect  Private  Rights. — We  have  here  the  two 
classes,  preventive  and  redressive  sanctions.  The  latter  are  much 
more  numerous  and  earlier  in  their  origin,  and  so  the  terminology 
of  this  part  of  the  law  has  been  developed  principally  in  connec- 
tion with  them.  As  their  design  is  to  compensate  for  injury  sus- 
tained, to  remedy  a  wrong  already  undergone,  they  are  most  fre- 
quently thought  of  and  spoken  of  from  this  point  of  view,  and  are 
designated  remedies,  and  we  shall  also  employ  that  term,  though 
as  to  the  preventive  sanctions,  its  accuracy  may  not  be  readily 
apparent. 

In  the  main,  the  distinction  between  preventive  and  redressive 
remedies  is  not  difficult  to  make,  but  in  some  instances  the  nature 
of  the  wrong  and  the  complete  vindication  of  the  right  involved 
requires  a  blending  of  the  two.  This  occurs  usually  in  continuing 
wrongs.  In  such  cases,  the  classification  would  not  be  strictly  ac- 
curate if  the  proceeding  be  considered  as  indivisible.  If,  however, 
we  consider  all  the  facts  and  look  upon  so  much  of  the  remedy  as 
is  designed  to  cut  off  future  injury  as  preventive,  and  so  much  as 
compensates  for  past  wrong  as  redressive,  the  difficulty  will  be 
greatly  lessened,  if  not  entirely  removed. 


LEGAL   SANCTIONS.  443 

Preventive  Remedies. — Preventive  remedies  are  those  which 
looking  to  the  future,  and  judging  it  by  the  past  and  pres- 
ent conduct  of  the  person  or  persons  complained  of,  anticipate 
either  the  immediate  beginning  of  wrongful  conduct,  or  the  con- 
tinuation of  a  course  of  such  conduct  already  begun,  and  under- 
take to  forestall  it  and  its  injurious  consequences,  by  dealing  di- 
rectly with  such  conduct  and  compelling  the  person  to  desist  from 
prosecuting  his  unlawful  designs.  These  evil  designs  may  re- 
quire affirmative  wrongdoing  on  "his  part  to  accomplish  them.  If 
so,  the  law  forestalls  this  by  forbidding  and  restraining  him  from 
doing.  This  remedy  is  called  an  injunction.  This  wrongful  con- 
duct may  be  simply  negative,  omitting  to  discharge  some  legal 
duty  requiring  affirmative  action.  If  so,  the  law  becomes  affirma- 
tively mandatory,  and  compels  the  doing  of  the  designated  act. 
Several  remedies  of  different  names  are  employed  for  this  pur- 
pose. They  include  mandatory  injunctions,  decrees  of  specific 
performance,  mandamus,  granting  writs  of  possession  of  particu- 
lar property,  abatement  of  nuisances,  etc.  The  more  important 
of  these  will  be  discussed  in  connection  with  the  several  courts 
which  enforce  them. 

Redressive  Remedies. — Redressive  or  compensatory  remedies 
are  those  which,  dealing  with  injuries  already  sustained,  under- 
take to  make  compensation  for  them.  The  law 's  idea  of  compen- 
sation is  payment  to  the  injured  party  of  a  sum  of  money  justly 
equivalent  to  the  value  of  that  which  is  lost  as  a  direct  con- 
sequence of  the  wrong  of  which  he  complains.  Sometimes  this  is 
very  easy  of  accomplishment;  sometimes  more  difficult,  but  still 
practicable ;  and  in  other  cases,  owing  to  the  nature  of  the  injury 
and  the  surrounding  facts,  it  is  wholly  impracticable.  The  last 
class  of  cases,  unless  the  facts  entitle  to  some  other  remedy,  are 
beyond  the  jurisdiction  of  municipal  law,  and  no  redress  can  be 
afforded. 

Damages. — This  money  estimate  of  injury  is  called  damage, 
and  the  rules  of  law  for  calculating  its  amount  are  the  legal  meas- 
ures of  damage.  When  the  injury  is  to  a  right  in  things, 
the  measurement  is  usually  simple.  If  the  wrong  involve  the  de- 
struction or  other  total  deprivation  of  the  thing,  its  reasonable 
market  value  at  the  time  and  place  of  the  injury  is  ordinarily  the 


444  AMERICAN    ELEMENTARY   LAW. 

measure.  For  example :  If  A  owns  10  bales  of  cotton  and  B  un- 
lawfully takes  it  and  applies  it  to  his  own  use,  the  law  will  in- 
quire what  the  cotton  could  have  been  sold  for  at  the  time  and 
place  when  and  where  B  took  it,  and  make  B  pay  to  A  that  sum, 
as  the  equivalent  of  the  cotton ;  and,  as  A  was  all  the  while  en- 
titled to  the  use  of  the  cotton ;  or  as  if  he  had  sold  it  for  cash  on 
the  day  B  took  it  he  could  have  had  the  use  of  the  money  since 
that  day,  the  law  makes  B  pay  him  the  value  of  this  use,  which  it 
estimates  at  the  legal  rate  of  interest  on  money  so  that  A  would 
recover  from  B  two  items  of  damage:  (1)  the  cash  value  of  the 
cotton  as  of  the  date  B  took  it;  and  (2)  additional  compensation 
for  the  use  of  his  money  by  B  estimated  as  equal  to  the  legal  rate 
of  interest  for  the  time  B  has  had  it.  This  is  the  simplest  form  of 
measuring  damages.  It  is  the  method  in  all  cases  in  which  the 
wrong  consists  in  the  total  deprivation  of  a  thing  which  has 
a  market  value  unless  the  wrongdoer  acted  in  bad  faith.  If  the 
thing  has  no  market  value  the  law  makes  full  investigation  as  to 
its  nature  and  qualities  and  uses,  and  arrives  at  its  intrinsic  value 
as  nearly  as  it  can  and  allows  this.  If  the  wrongdoer  knew  he 
was  acting  unlawfully,  the  owner  can  recover  the  highest  market 
price  which  could  have  been  gotten  for  the  thing  at  any  time  be- 
tween the  commission  of  the  wrong  and  the  trial  of  the  case. 

If,  instead  of  totally  destroying  or  appropriating  the  property, 
B  had  injured  it,  as  in  case  of  the  cotton  by  setting  fire  to  it  and 
consuming  part  of  it  and  lessening  the  market  price  of  the  re- 
mainder, here  it  would  not  be  just  to  permit  A  to  keep  what  was 
left  of  the  cotton  and  compel  B  to  pay  him  the  full  value  of  all  of 
it ;  so  the  law  changes  its  measure,  and  compels  B  to  pay  the  full 
market  price  for  that  destroyed  and  the  difference  in  market 
value  of  that  remaining;  that  is,  it  finds  the  market  value  of  the 
destroyed  cotton  as  of  the  date  of  its  destruction,  and  allows  A 
tli  at  and  damages  for  its  detention,  as  above,  and  then  ascertains 
what  the  balance  was  worth  on  the  market  in  its  injured  condition 
at  the  time  and  place  of  the  injury,  and  what  it  would  have  been 
worth  at  the  same  time  and  place  uninjured  and  allows  A  the  dif- 
ference between  these  two  values  and  also  compensation  for  the 
detention  of  this.  If  B  acted  in  bad  faith  the  highest  market 
value  rule  would  apply. 


LEGAL  SANCTIONS.  445 

If  the  wrongdoer  has  s'mply  taken  the  property  and  has  it,  the 
owner  may  pursue  either  of  two  remedies :  he  may  sue  for  the 
thing  and  have  it  restored  to  him  and  make  the  wrongdoer  pay 
the  reasonable  value  of  its  use  while  he  has  had  it,  or  he  can  sue 
him  for  the  value  and  damages  for  its  detention,  as  in  case  of  loss. 
In  some  States,  these  two  remedies  may  be  sued  for  in  the  same 
action,  the  judgment  being  in  the  alternative,  first  that  the  de- 
fendant return  the  property  and  pay  for  its  use,  or,  if  this  be  not 
done,  then  that  he  pay  the  value  and  compensation  for  its  deten- 
tion. 

"When  the  injury  is  to  rights  against  particular  persons,  when 
damage  is  the  appropriate  remedy,  it  is  usually  easy  to  compute. 
To  illustrate :  A  owes  B  a  debt  on  a  note  or  on  open  account  and 
does  not  pay.  The  measure  of  damage  is  the  amount  of  the  debt, 
principal  and  interest.  If  the  contract  be  one  for  service  and  it  is 
broken  by  the  master  or  principal  the  servant  or  agent  can  recover 
the  value  of  the  service  already  rendered  and  unpaid  for,  and  also 
the  contract  price  or  reasonable  value  of  the  service  which  he  was 
to  have  rendered,  less  the  amount  he  has  earned,  or,  by  reasonable 
effort,  might  have  earned,  during  the  remainder  of  the  time  for 
which  he  was  hired ;  and  so  on,  through  the  whole  catalogue  of 
similar  wrongs.  When  the  right  is  one  arising  from  contract,  and 
is  of  such  kind  that  it  is  practicable  and  more  just  to  require  the 
party  in  default  to  do  the  act  he  has  promised  to  do,  this  will  be 
required  of  him. 

"When  the  wrong  is  one  violative  of  a  personal  right,  as  assault 
and  battery,  or  false  imprisonment,  or  slander  and  similar  cases, 
there  is  no  exact  and  accurate  standard  by  which  to  measure  the 
damage.  Resort  can  not  be  had  to  market  value,  for  there  is  none. 
The  law  does  the  best  it  can  to  represent  the  injury  fairly  and 
dispassionately  in  terms  of  money  and  awards  this.  Loss  of  time 
and  expense  directly  resulting  can  be  measured  with  approximate 
accuracy;  diminished  wage-earning  capacity  may  also  be  ap- 
proximated, but  the  elements  of  pain  and  suffering,  whether 
physical  or  mental,  are  very  vague  and  uncertain.  The  best  that 
can  be  done  is  to  take  the  judgment  of  fair  and  unbiased  men  of 
ordinary  intelligence  as  to  the  amount  which  should  be  paid. 
When  the  injury  becomes  too  indefinite  to  admit  even  of  this 


446  AMERICAN   ELEMENTARY   LAW. 

method  of  dealing,  the  law  abandons  the  attempt  at  compensation, 
and  refuses  to  entertain  the  case. 

As  noted  before,  compelling  the  payment  of  damages  is  by  far 
the  most  common  remedy.  There  are  others,  some  of  which  have 
been  referred  to  above,  which,  though  less  frequent,  are  still  of 
great  importance.  These  will  be  considered  in  connection  with 
different  kinds  of  courts  through  which  they  are  given. 


CHAPTER  II. 

COURTS. 

Nature  and  Organization  of  Courts. 

Having  arrived  at  a  fairly  accurate  conception  of  the  purposes 
to  be  accomplished  through  the  courts  we  are  in  position  to  study 
intelligently  the  nature  and  constitutent  members  and  organiza- 
tion of  these  tribunals. 

Definition. 

A  court  is  an  agency  of  sovereignty,  created  by  it  or  under  its 
authority,  consisting  of  one  or  more  officers,  for  the  purpose  of 
hearing  and  determining  issues  of  law  and  fact  regarding  legal 
rights  and  alleged  violations  thereof  and  applying  the  sanctions 
of  the  law,  exercising  its  powers  in  due  course  of  law,  at  times  and 
places  previously  determined  by  lawful  authority. 

A  court  is  not  "a  place  where  justice  is  judicially  adminis- 
tered. ' '  It  is  the  tribunal,  created  by  sovereignty  as  its  agent  to 
administer  justice  judicially,  at  designated  times  and  places. 

As  an  agency  of  sovereignty  it  exercises  delegated  powers  and 
administers  the  will  of  sovereignty  as  expressed  and  embodied  in 
the  law.  Strictly  speaking,  a  court  has  no  will  or  preferences  of 
its  own.  It  is  the  official  instrument  through  which  sovereignty 
investigates  the  conduct  of  individuals,  applies  to  such  conduct 
the  standards  of  the  law,  forms  and  announces  its  judgment,  and 
enforces  its  will. 

The  judicial  function  of  government  involves  the  exercise  of 
three  powers : 

(1)  The  power  to  investigate  and  decide  the  facts  and  apply 
the  law  to  the  facts  as  ascertained. 

(2)  The  power  to  determine  and  announce  the  result  of  the  in- 
vestigation and  application. 

(3)  The  power  to  enforce,  or  more  accurately,  to  supervise  the 
enforcement  of  the  result  announced. 


448  AMERICAN   ELEMENTARY   LAW. 

The  courts  of  a  government  are  the  tribunals  through  which  it 
exercises  this  judicial  function. 

The  United  States  Government  and  each  of  the  States  has  or- 
ganized a  system  of.  courts  dividing  among  them  its  judicial 
power,  giving  to  each  class  of  courts  so  much  of  this  power  as  it 
sees  fit.  The  amount  of  power  thus  given  to  each  court  is  its  po- 
tential jurisdiction.  It  can  rightfully  hear  and  determine  any 
and  all  cases  committed  to  it  by  the  sovereign.  Any  attempt  to 
try  a  case  of  any  other  kind  would  be  unauthorized  and  the  action 
void. 

Courts  are  ordinarily  created  by  the  direct  act  of  sovereignty 
by  constitutional  provision.  This  is  not  necessary,  however,  as 
the  constitution  may  authorize  the  creation  of  all  courts  consti- 
tuting the  judicial  system  or  some  portion  of  them  by  the  Legis- 
lature. The  Constitution  of  the  United  States  creates  only  the 
Supreme  Court  of  the  United  States  and  does  not  give  the  num- 
ber of  judges  constituting  that  nor  undertake  to  state  all  the 
jurisdiction  of  that  tribunal.  Many  of  the  States  pursue  the 
same  policy. 

A  court,  considered  abstractly,  exists  only  in  legal  contempla- 
tion. Like  a  corporation,  which  it  much  resembles,  it  can  do 
nothing  of  itself.  All  of  its  functions  must  be  discharged  through 
natural  persons  and  the  law  frequently  speaks  of  these  persons  in 
their  official  capacity  as  constituting  the  court.  These  officers 
comprise  a  judge  or  judges,  a  jury,  a  clerk,  and  an  executive  offi- 
cer known  as  marshal,  sheriff,  constable,  etc.,  and  attorneys-at- 
law. 

Judges. 

It  is  manifest  that  an  agency  as  complicated  and  important  as 
a  court  can  not  be  operated  without  some  responsible  head  who  is 
authorized  to  give  general  direction  to  its  operations  and  super- 
vise the  action  of  all  its  subordinate  and  correlated  parts.  The 
officer  occupying  this  position  is  the  judge.  One  such  officer  is 
essential  to  the  practical  working  of  the  court.  Frequently  there 
is  a  larger  number  of  them  with  some  one  designated  to  act  as  the 
presiding  officer,  or  chief,  among  them.  The  judge  is  the  head  of 
the  court,  presides  at  its  sessions,  exercises  general  control  over 
all  its  actions.  He  decides  all  questions  of  law  arising  in  the 
course  of  the  trial,  determines  such  facts  as  arise  incidentally, 


COURTS.  449 

hears  and  decides  all  motions  during  the  trial,  and  determines 
what  judgment  shall  be  rendered.  He  supervises  and  directs  the 
clerical  officers  in  keeping  the  records  and  issuing  process  and  the 
executive  officers  •  in  the  discharge  of  their  duties.  In  criminal 
cases  and  civil  suits  triable  in  Common  Law  courts  according  to 
the  Common  Law  he  does  not  decide  the  questions  of  fact  involv- 
ing the  merits  of  the  case.  These  are  committed  to  other  officers, 
known  collectively  as  a  jury. 

The  Jury. 

A  jury  is  a  body  of  men  selected  as  required  by  law,  whose  duty 
it  is,  under  the  general  direction  of  the  judge,  as  to  matters  of 
law,  to  pass  on  the  issues  of  fact  in  a  case.  Juries  are  grand  and 
petit. 

A  grand  jury  is  one  impaneled  in  a  court  having  Jurisdiction 
of  criminal  matters  for  the  purpose  of  investigating  alleged  vio- 
lations of  law  committed  within  the  county  or  district  in  which  the 
court  is  held,  and  determining  whether  or  not  there  is  probable 
cause  to  believe  the  accused  person  is  guilty  as  charged.  If  they 
so  find,  they  advise  the  proper  legal  representative  of  the  govern- 
ment, and  he  prepares  a  bill  of  indictment  formally  charging 
such  person  with  the  designated  offense  and  this  is  signed  by  the 
foreman  of  the  grand  jury  and  returned  by  the  grand  jury  into 
open  court.  This  written  instrument  is  called  an  indictment.  It 
must  have  certain  requisites.  It  must  show  affirmatively  that  it 
is  filed  by  the  authority  of  the  government ;  must  identify  the  ac- 
cused with  reasonable  certainty;  must  set  forth  the  offense 
against  the  law  in  plain  and  intelligible  language,  giving  facts 
and  not  conclusions,  unless  there  be  ancient  and  established  pre- 
cedent for  the  latter. 

The  Constitutions  of  most  States  make  indictment  the  only 
basis  of  criminal  prosecutions  of  serious  nature,  and  this  can  not 
be  dispensed  with  by  legislative  action.  The  effect  of  an  indict- 
ment is  to  subject  the  accused  to  trial  on  the  charge  presented  in 
some  court  having  power  to  finally  hear  and  determine  the 
case. 

A  petit  jury  is  one  impaneled  in  a  court  for  the  purpose 
of  passing  on  and  finally  deciding  the  issues  of  fact  in  a  case  or 
cases  pending  in  the  court.  They  are  the  judges  of  the  credibility 
29 


450  AMERICAN  ELEMENTARY  LAW. 

of  witnesses  and  of  the  weight  of  testimony,  except  when  there 
are  express  rules  of  law  applicable  to  the  latter.  Whether  any 
proposed  evidence  is  legally  to  be  received  is  a  question  of  law  for 
the  judge.  The  effect  of  the  testimony,  when  admitted,  is  gener- 
ally with  the  jury.  Juries  have,  for  centuries,  been  regarded  as 
most  imortant  factors  in  the  administration  of  the  law.  From  the 
time  of  the  introduction  of  written  constitutions  it  has  been  cus- 
tomary to  declare  in  them  that  "the  right  of  trial  by  jury  shall 
remain  inviolate."  There  is  no  question  that,  although  the  sys- 
tem is  subject  to  abuses,  it  is  of  very  great  practical  benefit  and 
advantage  both  to  litigants,  in  reaching  just  and  equitable  deci- 
sions in  cases,  and  to  the  public  as  a  great  educational  institution. 
In  the  latter  respect,  it  affords  to  the  great  body  of  the  people  their 
best  administrative  and  practical  information  and  instruction  in 
the  law  of  the  land  and  the  nature  of  our  public  institutions.  In 
cases  in  which  there  are  no  juries,  the  facts  are  decided  by  the 
judge. 

Clerks. 

These  are  officers,  members  of  the  court,  whose  duty  it  is  to 
keep  the  records  and  files  and  issue  all  process  required  by  law. 

Sheriffs  or  Marshals. 

These  are  the  executive  officers  of  the  court  whose  business  it  is 
to  attend  the  court  and  carry  out  all  its  orders,  whether  given  di- 
rectly by  the  judge  from  the  bench,  or  through  the  clerk  by  issu- 
ance of  proper  process. 

Attorneys-at-Law. 

Attorneys,  or  counselors,  at  law  are  men  who,  from  special 
study  and  training,  are  fitted  to  assist  the  judges  and  juries  in  the 
discharge  of  their  duties  by  taking  charge  of  the  interests  of  liti- 
gating parties,  carefully  and  intelligently  investigating  cases  be- 
fore time  set  for  hearing,  by  properly  preparing  them  for  trial 
and  by  the  true  and  fearless  presentation  of  the  rights  of  their 
clients  during  the  trial.  Their  position  is  a  very  responsible  one, 
and  affords  fine  opportunity  for  rendering  substantial  aid  in  ad- 
ministering justice  in  individual  cases,  and  also  for  leadership  in 
all  legal  and  political  reforms.  They  live  close  to  the  heart  of  the 
business  community  in  their  private  consultations,  and  have  the 


COURTS.  451 

ear  of  the  judge  and  jury  and  general  public  in  their  court-house 
work.  Their  position  is  one  of  great  public  trust,  and  if  they 
prostitute  their  opportunities  to  selfish  and  unjust  ends  they 
become  great  public  evils.  If,  on  the  other  hand,  they  are  honora- 
ble, and  just,  and  true,  they  give  to  their  several  communities 
moral  and  political  ideals  and  examples  of  untold  good.  They  are 
officers  of  the  courts  in  which  they  practice,  and  must  procure 
licenses  from  the  government  before  entering  upon  their  profes- 
sion. These  licenses  may  be  revoked  by  the  courts  at  any  time, 
for  unprofessional  conduct  and  breach  of  trust,  either  to  a  parti- 
cular client  or  to  the  public.  It  is  unfortunate  that  the  practice 
of  the  profession  is  not  more  closely  guarded  against  false  and 
designing  men  who  use  it  for  ulterior  purposes. 

Different  Kinds  of  Courts. 

At  different  stages  of  the  law's  development,  and  at  the  same 
time  in  different  States,  there  have  been  quite  a  number  of  differ- 
ent courts.  These  may,  for  our  purposes,  be  classified  as  follows: 
Courts  exercising  Common  Law  jurisdiction;  courts  exercising 
Equity  jurisdiction;  courts  exercising  blended  Common  Law  and 
Equity  jurisdiction ;  and  certain  special  courts,  as  Courts  of 
Admiralty,  Ecclesiastical  Courts,  Probate  Courts,  and  Courts 
Martial.  There  are  others,  but  they  are  not  of  sufficient  practical 
importance  to  claim  any  share  in  our  limited  time. 

As  to  the  three  general  classes  of  courts,  we  will  deal  in  the  or- 
der of  their  development.  The  treatment  will  necessarily  be 
brief,  but  we  will  endeavor  to  make  it  accurate  as  far  as  it  extends. 

Common  Law  Courts. — If  we  take  up  the  matter  historically, 
we  find  that  of  the  courts  existing  in  England  at  the  time  of  the 
colonization  of  America  and  introduced  into  the  original  States 
of  the  Union,  the  oldest  are  those  known  as  the  Common  Law 
courts.  These  courts  have  both  civil  and  criminal  jurisdiction ; 
though,  as  they  originated  in  the  early  stages  of  social,  business, 
and  political  development,  the  civil  matters  with  which  they  deal 
are  in  the  main,  confined  to  such  classes  of  cases  as  arise  in  crude 
and  primitive  conditions  of  society,  and  relate  to  the  use  and  pos- 
session of  land,  breaches  of  agreement  and  torts  involving  force 
in  some  form. 

In  those  early  days  kings  were  believed  to  rule  by  divine  right 
and  to  be  the  real  source  of  all  political  power,  including  all  judi- 


452  AMERICAN   ELEMENTARY   LAW. 

cial  functions.  All  the  higher  courts  after  the  Norman  Conquest 
were  held  by  the  king,  or  by  some  one  to  whom  he  delegated  the 
authority ;  and,  until  Magiia  Charta,  they  had  no  fixed  place  for 
their  sessions,  but  followed  the  person  of  the  king  wherever  he 
might  be.  By  that  instrument,  one  of  them,  known  as  the  Court 
of  Common  Pleas,  was  located  in  Westminister,  and  location  of 
the  others  followed.  As  the  institution  of  a  suit  in  one  of  these 
courts  was  really  a  petition  to  the  king  to  give  aid  against  the 
wrongdoer,  the  king,  when  thus  solicited,  would  have  the  chan- 
cellor, who  was  keeper  of  the  Great  Seal,  to  issue  a  writ  com- 
manding the  person  complained  against  to  appear  before  some 
designated  court  to  answer  the  complaint.  This  writ  would  also 
specify  the  matters  complained  of,  and  would  authorize  the  court 
to  which  it  was  returnable  to  inquire  into  the  matter,  and  award 
the  remedy.  These  writs  were,  therefore,  the  means  of  bringing 
the  complaint  of  the  person  representing  himself  as  injured  and 
the  alleged  wrongdoer  before  the  court  and  were,  at  the  same 
time,  the  source  of  authority  in  the  court  to  hear  and  decide  the 
case.    Naturally,  these  writs  assumed  fixed  forms. 

They  were  of  several  kinds,  adapted  to  the  different  wrongs 
complained  of.  At  first  the  proceedings  were  plastic.  As  each 
kind  of  writ  presented  a  different  kind  of  complaint  and  would 
support  a  different  judgment,  the  whole  proceeding  for  trying 
cases  under  such  a  writ  was  designated  a  form  of  action,  there 
being  as  many  different  forms  of  action  as  there  were  different 
writs. 

In  process  of  time  these  methods  of  procedure  in  each  kind  of 
case  became  so  established  that  they  were  regarded  as  binding 
alike  on  the  officer  who  issued  the  writs  and  on  the  court  which 
tried  the  cases.  And,  unless  the  complaint  made  came  within  one 
of  the  established  writs  and  forms  of  action,  no  writ  would  issue, 
and  no  trial  could  be  had.  So  that  redress  for  civil  injuries  was 
limited  to  certain  kinds  of  wrong,  others  being  without  remedy. 
As  the  business  interests  of  the  community  advanced,  and  new 
conditions  of  life  arose,  this  became  intolerable.  Some  slight  re- 
lief was  afforded  by  act  of  Parliament,  but  this  was  limited 
to  only  a  few  cases  of  hardship,  very  closely  related  to  some  of 
those  with  which  the  law  courts  were  accustomed  to  deal.  No 
general  amelioration  of  conditions  was  effected. 


COURTS.  453 

The  only  thing  left  was  to  resort  to  the  king  by  petition,  and 
this  would  sometimes  be  granted  and  sometimes  would  be  referred 
to  the  chancellor  to  act  for  the  king  in  the  premises ;  and  from  this 
latter  practice  arose  the  Courts  of  Chancery  and  the  system  of 
principles  and  procedure  known  as  Equity.  Before  we  take  up 
these,  we  must  get  some  better  general  ideas  of  a  Common  Law 
court  and  its  methods  of  action,  and  the  nature  of  relief  afforded 
by  them. 

A  Common  Law  court  consisted  of  a  judge  or  judges  and  jury. 
By  Magna  Charta,  and  subsequent  action,  these  courts  were 
located  at  Westminister,  and  all  trials  were,  in  theory,  held  there. 
Under  the  rules  of  procedure  then  in  force,  jurors  to  try  each 
case  were  to  be  gotten  from  the  neighborhood  in  which  the  trans- 
action in  litigation  occurred.  This  idea,  in  connection  with  trials, 
was  a  strong  one,  and  the  clerk  of  the  court  in  Westminister 
would  issue  a  writ  commanding  the  sheriff  of  the  county  in  which 
the  cause  of  the  litigation  arose  to  summon  a  jury  from  that 
neighborhood  and  cause  them  to  come  to  London  at  a  designated 
time  to  try  the  designated  case.  The  shire  or  neighborhood  from 
which  the  jurors  were  to  be  summoned  was  called  the  venue  of  the 
case.  We  still  retain  the  word,  with  substantially  the  same  mean- 
ing. All  formal  court  proceedings  then  were  conducted  in  Latin, 
and  the  two  important  words  in  the  writ  issued  to  the  sheriff  re- 
quiring him  to  summon  the  jury  were  venire  facias,  do  you  cause 
to  come,  and  the  writ  itself  soon  took  that  name,  and  this  is  still 
retained ;  and  a  writ  requiring  a  sheriff  to  summon  an  ordinary 
jury  is  still  called  a  "venire;"  and,  if  the  jury  be  a  special  one, 
as  in  a  capital  case,  it  is  called  a  "special  venire."  And,  by  an 
easy  and  frequently  adopted  method  of  using  words,  we  often 
hear  the  jury  itself,  that  has  been  summoned  by  this  writ,  called 
a  "venire."  Many  of  our  familiar  law  phrases  have  similar  der- 
ivation. 

It  soon  became  exceedingly  onerous  to  compel  all  jurors  and 
witnesses  in  every  case  to  come  to  London  to  court,  and  the  ex- 
pedient was  adopted  of  sending  one  or  more  of  the  judges  to  the 
county  where  the  witnesses  and  juries  were,  there  to  try  the  facts 
of  the  case  and  bring  back  to  the  court  at  Westminister  a  record 
of  what  had  been  done;  and  the  court  at  Westminister  would  ac- 
cept this  record  as  true  and  enter  judgment  on  it  just  as  if  the 


454  AMERICAN  ELEMENTARY  LAW. 

proceedings  had  transpired  there  in  full  court.  The  conservatism 
of  the  Common  Law  judges  was  too  strong  to  permit  them  to  do 
this  by  direct  action.  They  did  it  in  this  fashion:  they  would 
cause  the  proper  officer  to  issue  a  writ  to  the  proper  sheriff  re- 
quiring him  to  summon  the  jury  to  come  to  "Westminister  as  be- 
fore, but  would  put  in  the  additional  provision  that  they  would 
be  excused  from  coming  if  one  of  the  justices  from  the  court  to 
which  the  writ  was  returnable  should  come  into  the  county  and 
try  the  case  before  the  date  mentioned  in  the  writ ;  if  he  did  come, 
they  were  to  meet  him  at  the  time  and  place  in  the  county  men- 
tioned. The  judge  always  came  to  the  designated  place  at  the 
time  set,  and  the  jurors  did  not  have  to  go  to  London.  The  writ, 
in  this  form,  was  also  in  Latin,  and  the  important  words  in  the 
clause  incorporating  this  new  condition  were  nisi  prius,  unless 
before,  so  the  courts  which  were  held  by  the  judges  throughout 
the  country  under  these  new  writs  were  called  Nisi  Prius  Courts, 
and  the  judges  who  went  out  to  hold  them  Nisi  Prius  Judge§. 
These  terms  afterward  came  to  signify  Common  Law  courts  and 
judges,  as  distinguished  from  courts  of  Equity  and  judges  pre- 
siding over  them. 

As  the  courts  of  Common 'Law  were  the  earliest  agencies  of  this 
sort  established,  they  naturally  were  adapted  to  crude  and  primi- 
tive conditions  of  society.  The  matters  over  which  they  had 
jurisdiction  were  of  those  kinds  which  first  demand  the  attention 
of  the  people,  and  were  limited  to  criminal  cases  and  civil  con- 
troversies about  land  or  breaches  of  contract  of  the  simpler  kinds, 
and  wrongs  to  the  person  or  personal  property,  almost  always 
committed  by  force.  The  remedies  given  were  practically  limited 
to  two  kinds:  (1)  restoration  of  specific  property,  real  or  per- 
sonal, and  (2)  award  of  damages.  Remedies  falling  within  either 
of  these  two  classes  were  known  as  ordinary  remedies ;  all  others, 
as  extra-ordinary. 

Every  civil  proceeding  in  a  Common  Law  court  is  known  as  an 
action.  They  were  of  three  general  kinds:  real  actions,  which 
pertained  exclusively  to  land  and  estates  in  land;  personal  ac- 
tions, which  pertained  to  personal  rights  and  personal  property ; 
and  mixed  actions,  which  involved  both  recovery  of  real  property 
and  damage  done  to  it.    These  several  classes,  or  rather,  the  first 


courts.  455 

and  second,  were  subdivided  into  numerous  different  classes,  each 
having  its  appropriate  name  and  peculiar  method  of  procedure. 

The  principal  real  actions  were  the  writ  of  right,  the  writ 
of  entiy,  the  writ  of  formedon,  the  writ  of  dower,  the  writ 
of  right  of  dower,  and  the  writ  of  quare  impedit.  These  were  so 
complicated  and  technical,  when  in  use,  as  to  make  their  study 
tedious,  and,  as  they  have  long  been  superseded  by  more  rational 
processes,  need  not  be  further  considered. 

Personal  actions  were  divided  into  those  arising  ex  contractu, 
that  is,  from  breach  of  contract;  and  those  arising  ex  delicto,  that 
is,  from  wrong  not  a  mere  breach  of  contract.  Each  of  these 
classes  was  again  subdivided.  Those  ex  contractu  into  assumpsit, 
debt,  and  covenant ;  and  those  ex  delicto-  into  trespass,  trespass  on 
the  case,  trover  and  conversion,  and  replevin,  with  the  action  of 
detinue  sometimes  classed  in  the  one  and  sometimes  in  the  other. 
Mr.  Smith,  in  his  work  on  Elementary  Law,  makes  the  following 
brief,  yet  comprehensive,  statement  as  to  these  personal  actions : 

"Actions  ex  contractu  are  those  based  upon  contract,  express  or 
implied;  actions  ex  delicto  are  those  based  upon  delict  or  tort. 
An  action  of  assumpsit  is  one  brought  for  the  recovery  of  dam- 
ages for  the  breach  of  a  simple  or  parol  contract.  An  action  for 
debt  is  one  brought  for  the  recovery  of  a  liquidated  or  certain  sum 
of  money.  An  action  of  trespass  is  one  brought  for  the  recovery 
of  damages  for  a  direct  and  forcible  injury  to  the  plaintiff's  per- 
son or  corporeal  property.  An  action  of  trespass  on  the  case  lies 
to  recover  damages  for  an  injury  to  person  or  property  which  is 
either  not  forcible  or  not  direct.  An  action  for  trover  is  one 
brought  to  recover  damages  for  the  wrongful  conversion  of  per- 
sonal property.  An  action  of  replevin  is  one  brought  for  the  spe- 
cific recovery  of  personal  property  and  for  damages  for  its  deten- 
tion."   (Smith's  Elementary  Law,  317.) 

Detinue  is  an  "action  for  depriving  one  of  the  possession 
of  personalty  acquired  originally  by  lawful  means.''  (Ander- 
son's Law  Dictionary,  title  Detinue.) 

The  only  mixed  action  was  ejectment,  which  was  a  proceeding 
in  which  specific  real  property  could  be  recovered,  and  also  dam- 
ages for  its  unlawful  use  and  occupation,  and  injury  done  to  it. 
Compared  with  the  old  real  actions  which  it  superseded,  it  was 


456  AMERICAN   ELEMENTARY   LAW. 

simple  and  almost  rational;  compared  with  the  later  proceedings 
which  have  superseded  it,  it  is  cumbersome,  technical,  fictitious, 
and  ineffectual. 

The  foregoing  were  the  civil  actions  which  could  be  maintained 
and  the  remedies  which  could  be  obtained  in  Common  Law  courts. 
If  a  grievance  did  not  come  within  one  of  them,  these  courts  could 
give  no  relief. 

All  matters  of  law  in  these  courts  were  to  be  heard  and  decided 
by  the  judge  or  judges,  as  were  also  all  matters  of  fact  arising  in- 
cidentally in  the  progress  of  the  trial.  All  matters  of  fact  in- 
volving the  merits  of  the  case  were  decided  by  a  jury. 

Courts  of  Equity. — Courts  of  Equity,  or  Chancery  Courts,  are 
of  much  later  origin  than  the  courts  of  common  law.  In  a  very 
true  sense  their  existence  is  a  protest  against  the  rigidity  and 
narrowness  of  the  common  law  courts  and  their  methods  of  pro- 
cedure. "When  grievances  arose  for  which  no  remedy  was  pro- 
vided at  law  special  petitions  were  addressed  to  the  king  and 
thecs  would  be  referred  to  the  ' '  keeper  of  his  conscience, ' '  the 
chancellor,  for  investigation  and  such  action  as  equity  and  good 
conscience  might  require.  At  first,  the  action  was  more  advisory 
than  mandatory,  but  as  time  passed  and  precedents  became  estab- 
lished, resort  to  this  method  of  relief  became  more  frequent  and 
the  procedure  more  fixed.  It  became  expedient  to  do  more  than 
advise  and  the  writ  of  subpcena  was  devised.  By  this  writ  the 
person  complained  of  was  compelled  to  come  into  the  prasence  of 
the  chancellor  and  abide  his  decision.  If  the  chancellor  upon  in- 
vestigation was  satisfied  that  the  party  complained  of  was  in  de- 
fault he. dealt  with  his  person  until  he  was  compelled  to  do  the 
proper  thing  in  the  premises  as  determined  by  the  chancellor.  If 
the  wrongdoer  insisted  upon  continuing  in  his  wrong  he  was  for- 
bidden to  do  so  and  was  restrained  or  enjoined  by  retaining  cus- 
tody of  his  person  until  he  desisted  and  then  subjecting  him  to 
recapture  and  holding  if  he  should  renew  his  wrongful  conduct. 
If  the  wrong  was  an  omission,  and  it  was  practicable  to  compel 
performance,  this  would  be  decreed  and  compliance  enforced  in 
the  same  way.  By  this  and  similar  changes  the  powers  of  the 
chancellor  were  transformed  from  giving  advice  addressed  to  the 
conscience  of  the  evil-disposed  to  issuing  authoritative  commands 
enforced  by  pains  and  penalties  imposed  upon  his  body. 


COURTS.  457 

As  the  only  occasion  for  originally  resorting  to  the  extraordi- 
nary petition  to  the  king  was  that  no  remedy  could  be  had  at  law, 
absence  of  legal  remedy  was  a  condition  precedent  to  relief  in  this 
way.  Later,  entire  absence  of  remedy  was  not  required,  and  if 
the  suitor  could  show  that  he  had  no  adequate  legal  remedy,  he 
could  maintain  his  suit,  if  otherwise  entitled.  It  followed  from 
the  same  fact,  that  equitable  remedies  would  differ  from  and  in  a 
sense  supplement  those  at  law.  A  perfectly  symmetrical  develop- 
ment of  the  Equity  idea  would  have  produced  a  system  of  courts 
in  which  all  wrongful  conduct,  incapable  of  correction  at  law, 
would  have  been  investigated  and  appropriately  redressed.  The 
practical  always  falls  short  of  the  ideal,  and  so,  no  complete  sys- 
tem of  administering  justice,  as  then  apprehended,  did  in  fact  re- 
sult ;  and  though  the  courts  of  Equity  and  their  remedies  afforded 
great  and  salutary  relief,  they  did  not  reach  all  cases  of  injustice 
incident  to  life,  even  in  its  development  at  that  time. 

In  process  of  time,  the  jurisdiction  of  Equity  came  to  include 
the  following  classes  of  cases;  (1)  Those  in  which  it  was  desired 
to  prevent  wrongdoing.  (2)  Those  in  which  it  was  desired  to 
compel  the  doing  of  some  act  beside  the  restitution  of  specific 
property  or  the  payment  of  money.  (3)  Those  in  which  it  was 
desired  to  compel  the  disclosure  of  facts  within  the  knowledge  of 
the  adverse  party.  (4)  Those  in  which  a  number  of  parties  were 
interested  in  such  a  way  that  they  could  not  be  placed  in 
two  groups  and  complete  justice  done  between  them.  (5)  Those 
in  which  rights  asserted  were  of  such  kind  that  the  Law  courts 
did  not  recognize  or  undertake  to  enforce  them.  (6)  Those  in 
which  duties  once  enforcible  at  law  had  been  discharged  in  such 
a  way  as  to  make  it  unjust  to  compel  further  discharge,  yet  not  in 
such  way  that  the  Law  courts  would  recognize  the  discharge. 
Having  attained  these  proportions,  the  growth  of  Equity  ceased. 

A  great  many  cases  come  under  one  or  more  of  these  heads,  and 
the  powers  and  jurisdiction  of  these  courts  are  correspondingly 
large.  Still,  if  a  grievance  does  not  come  within  these,  Equity 
will  not  relieve. 

The  proceeding  in  Equity  was  adapted  to  the  nature  of  the 
tribunal  and  the  remedies  it  afforded.  It  was  begun,  not  by  issu- 
ing a  writ  by  the  king's  secretary,  which  is  but  another  name  for 
the  chancellor,  as  at  Common  Law,  but  by  a  special  petition  to  the 


458  AMERICAN   ELEMENTARY  LAW. 

king,  setting  up  the  facts  which  constituted  the  special  wrong 
from  which  the  relief  was  sought.  This  petition  was  originally 
addressed  to  the  king  in  person;  hut,  after  the  establishment  of 
the  Court  of  Chancery,  it  was  addressed  to  the  chancellor.  It  set 
out  the  special  facts  on  which  relief  was  sought,  and  asked  for  the 
appropriate  remedy.  The  parties  against  whom  relief  was  sought 
were  named,  and,  after  the  writ  of  subpoena  came  into  use,  this 
was  prayed  for  especially  against  each  defendant,  naming  him. 
This  was  necessary,  as  the  remedy  was  to  be  enforced  only  against 
his  person,  and  not  by  any  writ  running  against  his  property. 
So  it  became  a  rule  in  Equity  that  no  one  not  named  in 
the  prayer  for  subpcena  was  a  party  to  the  suit,  and  this 
doctrine  is  still  enforced  in  these  courts.  The  subpcena  required 
the  defendant  to  appear  before  the  chancellor,  at  a  time  and  place 
named,  to  show  cause  why  the  relief  asked  by  the  complainant 
should  not  be  granted.  This  cause  consisted  of  some  reason  in 
law  or  in  fact  which,  under  the  principles  of  Equity,  would  de- 
feat the  complainant's  case,  as  set  out  in  his  Bill  of  Complaint,  as 
the  petition  was  called.  The  defendant  was  not,  as  at  Law,  con- 
fined to  any  one  defense,  but  could  interpose  as  many  as  he  might 
have,  if  he  presented  them  in  proper  order.  These  defenses  and 
their  order  are  thus  summed  up  by  Mitford  and  Tyler,  in  their 
work  on  Pleading  and  Practice  in  Equity:  "The  person  against 
whom  a  bill  is  exhibited,  being  called  upon  to  answer  the  com- 
plaint made  against  him,  may  defend  himself  (1)  by  demurrer, 
by  which  he  demands  the  judgment  of  the  court  whether  he  shall 
be  compelled  to  answer  the  bill  or  not;  (2)  by  plea,  whereby  he 
shows  some  cause  why  the  suit  should  be  dismissed,  delayed,  or 
barred;  (3)  by  answer,  which,  controverting  the  case  stated  by 
the  plaintiff,  confesses  and  avoids,  or  traverses  and  denies,  the 
several  parts  of  the  bill ;  or,  admitting  the  case  made  by  the  bill, 
submits  to  the  judgment  of  the  court  upon  it,  or  upon  a  new  case 
made  by  the  answer,  or  both ;  or  (4)  by  disclaimer,  which  at  once 
terminates  the  suit,  the  defendant  disclaiming  all  right  in  the 
matter  sought  by  the  bill. ' ' 

The  issues  thus  joined  between  the  parties  were  all  decided  by 
the  chancellor.    No  jury  was  ever  impaneled  in  an  Equity  coui\ 
and,  consequently,  this  reason  for  taking  the  chancellor  into  the 
different  counties  did  not  exist.    The  inconvenience  as  to  wit- 


courts.  459 

nesses  was  obviated  by  taking  their  testimony  by  deposition. 
This  is  a  process  of  having  the  witness  appear  before  some  desig- 
nated officer  by  or  before  whom  they  are  interrogated  under  oath, 
and  their  answers  reduced  to  writing  and  signed  by  the  witnesses, 
and  then  returned  into  court  by  the  officer.  This  obviated  the 
necessity  of  the  personal  attendance  of  the  witnesses  before  the 
chancellor.  It  became  the  settled  practice  in  that  court,  and  is 
still  retained  in  all  courts  of  strictly  Equity  jurisdiction  and  pro- 
cedure. So  that  neither  jurors  nor  witnesses  are  ever  in  attend- 
ance upon  them. 

The  final  conclusion  arrived  at  in  Equity  is  not  called  a  judg- 
ment, but  a  decree.  It  is  much  more  flexible  and  adaptable  than 
a  Common  Law  judgment,  and  awards  to  the  different  parties  the 
different  remedies  to  which  each  shows  himself  entitled. 

The  distinction  between  courts  of  Equity  and  courts  of  Law 
was  maintained  for  many  years  in  England,  and  was  a  distinctive 
feature  of  English  procedure  when  the  American  governments 
were  founded  and  institutions  established.  It  was  transported  to 
this  continent,  was  recognized  in  the  Constitution  of  the  Federal 
goverment,  as  it  is  in  those  of  many  of  the  States.  It  never  ex- 
isted in  Texas,  and  was  abolished  in  New  York  in  1846,  and  in  the 
majority  of  the  States  since  that  time.  In  some  of  the  States  re- 
taining the  two  systems,  the  two  sets  of  courts  and  of  presiding 
officers  are  retained,  the  courts  of  Law  being  held  by  judges,  and 
the  courts  of  Equity  by  chancellors.  In  the  Federal  government, 
and  in  a  number  of  the  States,  the  distinction  between  the  two 
jurisdictions  and  procedures  is  retained,  but  the  same  officer  pre- 
sides over  both  tribunals,  acting  as  judge  in  the  Common  Law 
court  and  observing  all  of  the  methods  of  the  Common  Law  in 
cases  coming  under  his  Common  Law  jurisdiction;  and,  as  chan- 
cellor, in  the  Equity  court,  and,  in  that,  exercising  the  powers  and 
following  the  procedure  applicable  to  those  courts. 

Courts  of  Blended  Jurisdiction. — In  the  majority  of  the  States 
the  difference  between  the  two  jurisdictions  and  procedures  has 
been  abolished.  In  Texas,  it  never  was  recognized.  In  these 
States  the  same  tribunals  entertain  jurisdiction  of  both  Common 
Law  and  Equity  causes,  recognize  and  enforce  both  legal  and 
equitable  rights,  and  award  both  legal  and  equitable  relief. 
The  proceedings  are  very  much  more  simple  and  direct  than 
in   either   of   the   systems   of   courts   which   have   been   super- 


460  AMERICAN   ELEMENTARY  LAW. 

seded  by  them.  Most  of  the  States  which  have  this  blended 
system  have  adopted  codes  of  procedure,  regulating  all  pleading 
and  practice  matters  thereby.  These  are  called  code  States,  and 
the  pleading,  code-pleading.  Strictly  speaking,  Texas  is  not  a 
code  State.  She  has  never  attempted  to  regulate  the  pleadings  in 
her  courts  by  a  code.  On  the  contrary,  the  Congress  of  the  Re- 
public, in  1840,  in  adopting  the  Common  Law,  expressly  repudi- 
ated its  system  of  pleading,  and  declared  that  "in  the  courts  of 
this  State  the  pleadings  should  continue,  as  theretofore,  to  be  by 
petition  and  answer."  This  left  to  the  courts  the  question 
of  what  pleading  had  previously  been  under  the  Spanish  system. 
This  they  did,  and  by  a  combination  of  regulation,  first  by  rules 
promulgated  by  the  courts,  and  second  by  decision  of  cases  when 
presented,  they  have  developed  the  present  Texas  system.  This 
is,  in  effect,  the  simple,  direct,  clear  presentation  to  the  court,  by 
the  respective  parties  to  the  suit,  of  the  matters  of  fact  upon 
which  they  severally  rely  in  their  efforts  to  induce  the  court  to  act 
as  they  respectively  desire  that  it  should.  This  is  the  fundamen- 
tal conception  of  pleading  in  all  systems,  and  the  less  of  conven- 
tionality and  form  that  is  incorporated  with  it,  consistent  with 
due  and  orderly  proceedings  in  the  litigation,  the  larger  oppor- 
tunity the  court  has  to  administer  justice.  The  essential  idea  is 
that  the  court  and  each  of  the  opposing  parties  shall  be  definitely 
and  authoritatively  advised,  in  reasonable  time,  of  the  respective 
claims  of  all  parties,  what  each  relies  upon  and  expects  to  prove, 
and  that  a  permanent  record  of  this  be  made  and  kept.  When 
this  is  done  the  purpose  is  accomplished.  Unless  it  is,  the  scheme 
is  a  failure,  or,  at  least,  defective. 


CHAPTER  m. 

HOW  JURISDICTION  OVER  A  CASE  IS  ACQUIRED. 

As  different  as  are  these  several  classes  of  courts,  there  are  some 
fundamental  doctrines  which  must  obtain  in  them  all.  They  all 
exercise  judicial  power  in  its  three  phases :  hearing,  determining, 
and  enforcing,  and  must  all  be  organized  with  reference  to  this. 
The  methods  by  which  these  processes  are  performed  are  differ- 
ent, but  each  of  the  processes  must  be  gone  through  with,  with 
fair  efficiency,  or  the  particular  tribunal  is  a  failure.  We  have 
already  considered  the  different  matters  over  which  these  several 
classes  of  courts  have  jurisdiction.  We  will  now  take  up  the  gen- 
eral principles  governing  the  exercise  of  these  powers,  and  after- 
ward some  of  the  peculiarities  of  each. 

Parties. 

The  power  of  courts  is  limited  to  dealing  with  legal  rights  and 
wrongs,  and  awarding  legal  remedies.  These  rights  must  always 
belong  to,  or  be  united  in,  one  or  more  persons,  and  the  wrongs  be 
committed  by  one  or  more  persons,  and  the  remedy  awarded  to 
and  against  one  or  more  persons.  In  every  litigation  there  must 
be  at  least  two  persons  interested,  the  one  seeking  relief  and  the 
one  against  whom  the  relief  is  sought.  In  the  great  majority  of 
instances  both  these  persons  are  named  in  the  proceeding ;  in  ex- 
ceptional cases  they  are  not  both  named,  but,  theoretically,  they 
are  always  there,  or  have  been  afforded  legal  opportunity  to  be 
there.  These  persons  appear  before  the  courts  in  all  sorts  of 
groupings.  Sometimes  there  is  one  on  each  side  of  the  case, 
sometimes  one  on  one  side,  and  several  persons,  or  the  whole 
world,  on  the  other ;  sometimes  there  are  several  on  each  side. 
The  rule  is,  that  whoever  is  to  be  bound  by  the  decision  or  judg- 
ment must  be  before  the  court,  on  one  side  or  the  other. 

Persons  who  are  before  the  court  in  any  capacity  are  techni- 
cally called  parties.    The  person  who  is  dissatisfied  with  existing 


462  AMERICAN   ELEMENTARY  LAW. 

conditions  and  who  wants  some  relief  from  them,  and  applies  to 
the  court  for  this  relief,  is  the  actor.  He  is  called  the  plaintiff,  or 
petitioner,  or  complainant,  or  relator,  or  by  any  other  appropriate 
name.  He  against  whom  the  complaint  is  made  is  usually  called 
the  defendant,  or  the  respondent.  If  a  third  person,  who  is  not 
originally  brought  into  the  litigation,  has  a  legal  interest  in  the 
proceeding,  he  may  come  in  in  many  kinds  of  cases  and  make  him- 
self a  party.    He  is  called  an  intervener. 

These  parties  of  various  kinds  bring  their  differences  to  the 
court  to  be  investigated  and  decided,  and  have  the  result  author- 
itatively enforced.  These  differences  always  relate  to  matters  of 
law  or  fact,  or  both,  and  their  effect  upon  the  legal  rights  and  du- 
ties of  the  respective  parties. 

Things. 

Things  here  have  the  same  meaning  as  in  other  connections  in 
the  law,  and  include  all  existences  not  looked  upon  as  persons. 
Usually,  however,  when  regarded  as  subject  to  control  by  a  court, 
they  are  limited  to  tangible  or  corporeal  things  which  may 
be  taken  into  possession,  or  such  ideal  matters  as  are  fixed  and 
continuing,  and  directly  connected  with  persons,  and  going 
to  make  up  status.  Status  is  a  condition  or  standing  before  the 
law,  having  reasonable  permanence,  an  established  and  continu- 
ing legal  condition,  as  citizenship,  coverture,  insanity,  etc.,  which 
ordinarily  cannot  be  changed  by  the  will  of  the  party  interested 
without  the  co-operation  of  the  law. 

Subject  Matter. 

This  is  different  from  both  persons  and  things,  in  this  connec- 
tion. It  means  the  rights  claimed  by  the  several  plaintiffs,  the 
wrongs  charged  against  the  defendants,  and  the  remedies  sought. 
For  example :  A  and  B  both  claim  title  to  a  lot  in  a  city ;  B  is  in 
possession  and  refuses  to  give  it  up  to  A ;  A  sues  B  for  the  lot  and 
to  have  his  title  declared  better  than  B  's  and  to  get  possession  of 
the  property.  Here  A  is  the  party  plaintiff,  and  B  is  the  party 
defendant.  The  thing  involved  is  the  lot,  and  the  subject  matter 
of  the  suit  is  the  rights  claimed  by  each  party  in  the  lot, 
the  wrong  which  each  charges  against  the  other  with  regard  there- 
to, and  the  remedy  each  desires  to  obtain  by  the  litigation. 


HOW  JURISDICTION  OVEB  A   CASK  IS  ACQUIRED,  463 

Issues. 

These  are  matters  of  law  or  fact  affirmed  by  one  party  to  a  suit 
and  denied  by  the  other.  One  litigant  says : ' '  The  law  is  this,  and 
under  it  I  have  certain  rights;"  the  other  says:  "Not  so.  The 
law  is  not  as  you  contend,  and  you  have  not  the  legal  right  you 
claim. ' '  This  is  an  issue  of  law.  The  litigants  may  agree  upon  the 
law,  but  one  may  still  contend  that  a  certain  fact  is  true,  and  ap- 
plying the  admitted  law  to  it,  say:  "I  have  certain  legal  rights." 
The  other  replies : ' '  Not  so.  The  law  is  as  you  claim,  but  the  facts 
are  not  as  you  contend  and  for  this  reason  you  have  not  the 
legal  rights  claimed. "  This  is  an  issue  of  fact.  Both  the  law  and 
the  fact  may  be  in  dispute.  Here  we  would  have  both  the  above 
contentions,  and  issues  both  of  law  and  of  fact  in  the  same  case.  A 
matter  thus  affirmed  by  one  party  and  denied  by  the  other  is 
called  an  issue. 

It  is  the  province  of  the  courts  to  decide  such  issues  authorita- 
tively. Before  they  can  do  this,  a  number  of  facts  must  exist  and 
a  number  of  processes  must  be  gone  through. 

Jurisdiction. 

First,  the  court  to  which  resort  is  had  must  have  authority 
from  the  sovereign  to  try  the  questions  involved  in  the  suit  and  to 
control  the  parties  between  whom' these  questions  are  to  be  de- 
cided. 

This  is  potential  jurisdiction,  authority  to  act  for  sovereignty 
in  deciding  issues  and  binding  parties.  It  is  derived  solely  from 
the  sovereign,  and  can  neither  be  enlarged  nor  diminished  by  the 
parties  to  a  controversy. 

Not  only  must  the  court  have  this  delegated  power,  but  the 
power  must  be  actually  applied  to  and  put  in  operation  upon  both 
the  subject  matter  constituting  the  issues,  and  the  parties  to  the 
litigation.  This  actual  exercise  of  potential  jurisdiction  is  active 
jurisdiction.  In  some  instances  the  persons  interested  in  the  liti- 
gation, and  the  thing  about  which  they  desire  to  litigate,  may 
both  be  brought  fully  and  completely  within  the  active  jurisdic- 
tion of  the  court ;  if  so,  the  court  can  hear  and  determine  all  the 
questions  involved  in  or  relating  to  the  controversy.  In  other  in- 
stances the  court  can  not  obtain  such  full  jurisdiction  over  one  or 
the  other.    If  no  jurisdiction  can  be  obtained,  none  can  be  ex- 


464  AMERICAN   ELEMENTARY   LAW. 

ercised ;  if  partial,  but  not  full,  jurisdiction  can  be  obtained,  the 
exercise  of  control  will  be  partial  only. 

Kinds  of  Proceedings. 

There  are  three  general  elates  of  proceedings  in  courts,  known, 
respectively,  as  proceedings  in  personam,  proceedings  in  rem,  and 
proceedings  quasi  in  rem. 

The  first  of  these  deals  strictly  with  persons  and  personal  obli- 
gations, and  to  support  the  action  of  the  court  therein  there  must 
be  full  jurisdiction,  that  is,  both  potential  and  full  active  juris- 
diction over  the  subject  matter  of  the  suit  and  the  persons  sought 
to  be  bound.  As  no  thing  is  involved  specifically,  no  control  over 
any  specific  thing  need  be  obtained. 

The  second  deals  directly  with  a  thing  or  status,  and  if  the 
court  has  potential  jurisdiction  over  the  subject  matter  of  the 
suit,  and  active  jurisdiction  over  such  subject  matter  and  the 
thing,  it  is  not  necessary  to  have  the  persons  interested  all 
brought  before  it  by  name  or  by  summons,  but  the  court  deals  di- 
rectly with  the  thing  within  its  jurisdiction,  and  binds  all  persons 
by  such  action. 

In  the  third,  there  must  be  potential  jurisdiction  over  the  per- 
sons, subject  matter  and  thing  involved,  but  it  is  not  necessary  to 
have  complete  and  full  control  over  either  persons  or  thing.  The 
court  deals  with  the  persons,  not  generally,  but  only  so  far  as  they 
are  concerned  in  the  thing ;  and  with  the  thing,  not  generally,  but 
only  so  far  as  the  particular  parties  to  the  suit  are  concerned. 

It  is  apparent  that  different  methods  of  acquiring  active  juris- 
diction over  persons,  subject  matter,  and  things  would  be  permis- 
sible in  these  different  proceedings. 

Potential  Jurisdiction. 

Potential  jurisdiction  is  always  a  grant  from  the  sovereign.  It 
can  have  no  other  source.  It  must  always  exist  in  every  proceed- 
ing of  every  kind  over  the  persons  and  subject  matter  involved  in 
the  litigation,  and  if  a  thing  is  to  be  directly  affected,  over  that 
also. 

In  establishing  a  system  of  courts  persons,  subject  matter  and 
things  are  considered  in  apportioning  jurisdiction.  Sometimes 
certain  courts  will  be  given  authority  to  hear  eases  to  which  cer- 
tain persons  are  parties,  as  the  Supreme  Court  of  the  United 


HOW   JURISDICTION   OVER  A   CASE   IS  ACQUIRED.  465 

States,  has  exclusive  jurisdiction  over  suits  between  States. 
Sometimes  proceedings  in  rem  can  be  heard  only  in  a  court  where 
the  res  is  located.  But  subject  matter  is  usually  the  most  impor- 
tant consideration  in  apportioning  jurisdiction.  One  class  of 
courts  will  be  authorized  to  try  cases  involving  certain  rights,  or 
certain  wrongs,  or  certain  remedies,  and  another  class,  suits  in- 
volving others.  This  is  practically  the  only  basis  of  distribution 
of  judicial  power  among  the  courts  constituting  the  present  judi- 
cial system  in  most  of  the  States. 

Active  Jurisdiction. 

This  is  acquired  over  the  person  in  two  general  ways: 

(1)  By  voluntary  submission  of  the  party. 

(2)  By  compulsory  process. 

The  first  attaches  whenever  the  party,  whether  plaintiff,  de- 
fendant or  intervener,  comes  before  the  court,  invokes  its  aid,  or 
takes  part  in  its  proceedings.  The  second  is  acquired  by  the  court 
through  its  proper  officers  issuing  and  having  served  some  proper 
process  commanding  the  person  to  come  before  it,  at  a  time  and 
place  named,  for  the  purposes  designated  in  the  summons. 

Process  is  an  order  issued  by  the  proper  judicial  officer  com- 
manding a  designated  person  to  perform  a  certain  act,  or  forbid- 
ding him  to  perform  a  certain  act.  It  may  be  either  oral  or  writ- 
ten. It  is  usually  in  writing  under  the  seal  of  the  court.  A  writ- 
ten process  is  called  a  writ. 

The  process  by  which  active  jurisdiction  over  parties  to  suits  is 
obtained  is  called  citation.  It  is  always  written  and  under  seal 
of  the  court,  if  the  court  have  a  seal.  It  commands  the  officer,  or 
other  person  to  whom  it  is  addressed,  to  summon  the  person 
or  persons  whose  presence  before  the  court  is  required  to  ap- 
pear before  the  designated  court  at  a  time  and  place  named  to 
answer  the  complaint  made  against  him  and  present  his  side  of 
the  controversies  involved  in  the  case. 

The  action  of  the  person  to  whom  the  writ  is  directed  in  notify- 
ing the  person  to  be  summoned  of  the  pendency  of  the  suit, 
is  called  service  of  the  process.  Service  must  always  be  made  in 
accordance  with  the  command  contained  in  the  particular  writ. 
The  methods  of  service  are  of  two  kinds :  one  by  notification  given 
to  the  party  to  be  served  in  person  in  a  manner  prescribed  by  law, 
the  other,  by  publication  of  the  citation  for  a  designated  length  of 
30 


466  AMERICAN  ELEMENTARY   LAW. 

time  in  a  newspaper  or  newspapers.  The  first  is  called  personal 
service,  the  other,  service  by  publication.  It  is  customary  for  ci- 
tations to  be  directed  to  an  officer,  but  if  the  statute  so  provides, 
the  process  may  be  directed  to  a  private  person  having  the  quali- 
fications designated  in  the  statute.  "When  service  of  a  citation  is 
made  when  the  person  served  is  outside  of  the  State  from  whose 
court  the  process  issues,  it  is  called  extra-territorial  service.  It  is 
apparent  that  there  may  be  Various  methods  of  issuing  and  serv- 
ing citations.  The  effects  upon  the  court's  power  to  control  the 
defendant  served  differ  with  these  differing  conditions. 

Every  sovereign  has  very  full  control  over  its  citizens  or  sub- 
jects. It  can,  consequently,  lawfully  provide  any  method  of  ac- 
quiring active  jurisdiction  over  them  which  affords  reasonable 
opportunity  to  come  before  the  court  and  have  a  hearing  as  to 
their  rights.  Citation  issued  and  service  had  upon  a  citizen  in 
conformity  to  the  statutes  of  his  State,  which  affords  this  fair  op- 
portunity will  be  good,  giving  complete  active  jurisdiction  over 
him,  whether  the  service  be  personal  or  by  publication  within  or 
without  the  State. 

As  to  persons  not  citizens  and  not  resident  within  the  State,  the 
powders  of  the  sovereign  are  not  so  great.  No  complete  jurisdic- 
tion can  be  gotten  over  these  while  without  the  State,  either  by 
personal  or  public  notice.  If  such  persons  are  within  the  State, 
personal  service  will  be  good. 

Complete  active  jurisdiction  over  a  thing  is  acquired  by  taking 
it  actually  into  the  custody  of  the  court,  through  some  officer,  as  by 
seizing  a  stock  of  goods,  or  taking  actual  possession  of  land.  A 
qualified  or  partial  control  over  a  thing  may  be  acquired-by  spe- 
cifically describing  it  and  the  rights  claimed  in  it  in  the  pleadings, 
and  submitting  these  to  the  court. 

Status  is  brought  within  the  active  jurisdiction  of  courts  having 
potential  jurisdiction  in  the  matter  by  some  person  directly  inter- 
ested in  it  submitting  the  question  of  status  to  the  court  and  ask- 
ing an  adjudication  of  it. 

Active  jurisdiction  over  subject  matter  is  obtained  by  the  sub- 
mission of  issues  to  the  court  for  adjudication.  A  claims  certain 
rights ;B  violates  them;  A  wants  redress.  He  goes  before  the 
court  authorized  to  adjudicate  these  matters,  and  presents  them 
to  the  court  for  determination.    This  invocation  of  the  court's 


HOW   JURISDICTION   OVER  A   CASE   IS  ACQUIRED.  467 

powers  as  to  these  matters  subjects  them,  the  rights,  the  wrongs, 
and  the  remedies,  all  to  the  court.  It  takes  control  of  them  all 
and  does  in  the  premises  as  the  law  commands.  This  submission 
is  limited  to  the  matters  in  good  faith  sought  to  be  presented  to 
the  court ;  so  that,  if  there  be  other  controversies  between  the  same 
parties  not  included  in  this  invocation,  they  are  not  affected 
thereby.  Thus,  if  A  has  two  notes  against  B,  both  due  and  un- 
paid, and  he  sues  on  one,  this  subjects  all  of  A's  rights  and  B's 
liabilities  on  that  note  to  the  active  jurisdiction  of  the  court,  and 
authorizes  the  settlement  of  all  matters  between  them  based  upon 
that  note.  But  this  suing  upon  one  note  does  not  bring  the  other 
before  the  court,  and  the  court  could  not  adjudicate  anything 
concerning  it. 

If  the  party  complained  against  has  additional  matters  he 
thinks  the  court  ought  to  consider  in  connection  with  those  sub- 
mitted by  his  adversary,  he  must  present  them  to  the  court  in  the 
manner  provided  by  law.  If  he  does  so,  and  they  are  proper  mat- 
ters for  adjudication  in  connection  with  the  plaintiff's  complaint, 
the  court  will  take  active  jurisdiction  over  them  and  adjudicate 
them  also. 

Eecapi  tula  ting  and  making  a  practical  application  of  the  fore- 
going doctrines  in  each  of  the  three  kinds  of  proceedings  we  find : 

(1)  No  court  can  adjudicate  a  matter  unless  it  has  potential 
jurisdiction  over  the  persons  who  are  parties,  over  the  subject 
matter  of  the  suit,  and  over  the  thing  to  which  these  legal  rights 
and  duties  pertain.    This  is  true  in  all  three  kinds  of  proceedings. 

(2)  In  proceedings  in  personam  the  court  must  have  full  ac- 
tive jurisdiction  over  the  persons  and  the  subject  matter.  Active 
jurisdiction  over  the  persons  may  be  obtained  either  by  voluntary 
submission  by  the  person  or  by  due  service  of  process  by  the  court. 
Such  service  may  be  gotten  upon  anyone  within  the  State  either 
by  personal  service  or  by  publication  in  conformity  to  the  local 
statutes.  Such  service  may  be  gotten  upon  citizens  of  the  State  in 
which  the  court  is  held  by  extra-territorial  service,  either  per- 
sonal or  by  publication.  Non-resident  non-citizens  cannot  be 
brought  within  the  active  jurisdiction  of  the  court  in  proceedings 
of  this  kind  by  any  sort  of  extra-territorial  service. 

(3)  In  proceedings  in  rem  the  thing  or  status  sought  to  be  de- 
termined must  be  within  the  potential  jurisdiction  of  the  court, 


468  AMERICAN   ELEMENTARY   LAW. 

and  must  be  brought  within  the  complete  active  jurisdiction  of  the 
court  by  seizure  of  the  thing  and  taking  it  into  the  custody  of  the 
court  pending  the  litigation,  or  by  actual  submission  of  the  facta 
upon  which  status  is  based  and  request  for  adjudication. 

In  these  proceedings  regarding  things  it  is  not  essential  that 
there  be  any  service  upon  the  parties  unless  this  is  required  by 
local  law.  "Where  status  is  involved  and  no  one  but  the  petitioner 
and  the  public  are  concerned,  as  in  naturalization  proceedings,  no 
service  is  necessary.  In  cases  in  which  some  other  person  is  di- 
rectly interested  in  the  question  of  status,  as  in  divorce  proceed- 
ings, service  of  some  kind  must  be  had  upon  such  interested  party. 
In  divorce  cases  where  both  parties  are  residents  within  the  State, 
either  personal  service  or  service  by  publication  upon  the  deff-nd- 
ant  is  good.  According  to  the  great  weight  of  authority,  if  the 
plaintiff  is  a  bona  fide  resident  of  the  State  in  which  the  procsed- 
ings  are  had,  extra-territorial  service  upon  the  defendant, 
whether  personal  or  by  publication,  is  good.  According  to  the  de- 
cision in  Haddock  v.  Haddock,  extra-territorial  service  in  divorce 
cases  is  not  good,  at  least  judgments  based  thereon  are  not  bind- 
ing in  other  States,  unless  the  suit  is  brought  in  the  Stat?  in 
which  the  plaintiff  was  at  the  time  a  bona  fids  resident  and 
in  which  the  marital  domicile  of  the  parties  is  located. 

(4)  In  proceedings  quasi  in  rem,  the  court  undertakes  by  its 
judgment  to  bind  the  parties  to  the  litigation  only  so  far  as  their 
rights  in  the  thing  submitted  to  the  court  are  concerned,  ai  d  to 
bind  the  thing  involved  in  the  litigation  only  so  far  as  these  par- 
ties are  concerned,  and  hence  either  personal  service  or  servh  e  by 
publication  is  good,  whether  the  party  or  parties  served  was 
within  or  without  the  State  at  the  time  of  the  service. 


CHAPTER  IV. 

PLEADINGS. 

As  the  business  of  courts  is  to  hear  and  determine  controversies 
as  to  legal  rights  and  wrongs,  and  to  award  or  withhold  remedies 
as  the  law  and  facts  of  the  case  may  require,  some  means  of  pre- 
senting these  controversies  must  be  provided.  This  means  is 
pleading.  On  the  part  of  the  plaintiff,  it  is  stating  to  the  court 
the  facts  which  constitute  or  show  his  rights  in  the  matter  pre- 
sented, the  violation  of  those  rights  by  the  defendant,  the  injury 
resulting  to  the  plaintiff  and  the  prayer  for  the  appropriate  rem- 
edy; or,  as  it  is  technically  called,  the  plaintiff's  cause  of  action. 
On  the  part  of  the  defendant,  it  is  a  statement  of  the  reasons  why 
the  plaintiff  ought  not  to  maintain  his  suit,  or,  speaking  techni- 
cally, the  defendant's  grounds  of  defense. 

In  the  earliest  stages  of  legal  procedure  doubtless  all  of  these 
statements  were  made  orally  after  the  court  had  convened.  This 
is  still  the  method  in  unimportant  civil  cases  and  by  the  defend- 
ant in  criminal  cases,  but  for  many  years  the  pleadings  for  all 
parties,  in  all  civil  cases  of  importance,  and  by  the  State  in  crim- 
inal cases,  have  been  required  to  be  in  writing.  As  pleadings 
are  but  the  embodiments  of  the  controversy  between  the  parties,  it 
is  apparent  that  they  must  vary  with  differing  controversies;  and 
as  controversies  of  different  kinds  used  to  be  settled  in  different 
courts,'  it  naturally  followed  that  the  pleadings  or  manner  of  stat- 
ing these  controversies  varied  also.  These  differences  in  jurisdic- 
tion of  courts,  and  in  remedies,  and  in  pleadings,  still  remain  in 
the  Federal  system,  and  in  those  of  many  of  the  States.  In  other 
States  these  differences  of  jurisdiction  do  not  exist,  and  the  dif- 
ferences in  pleading  are  also  practically  ended. 

Definition  of  Pleading. 

"We  may  define  pleading  as  the  process  by  which  the  several 
parties  to  a  suit  make  known  to  the  court  and  the  opposite  party 
th«ir  respective  contentions  in  the  case;  the  plaintiff  thereby 


470  AMERICAN   ELEMENTARY   LAW. 

seeking  to  induce  the  court  to  give  him  some  remedy  against  the 
defendant,  and  the  defendant  seeking  to  induce  the  court  not  to 
do  so. 

Manner  of  Presenting  and  Joining  Issues. 

Tendering  Issues. — As  the  purpose  of  a  suit  is  to  enforce 
a  legal  right,  and  force  the  defendant  to  respect  it  in  the  future, 
or  make  compensation  for  its  violation  in  the  past,  it  follows  that 
there  must  be  some'  rule  or  rules  of  law  on  which  the  plaintiff 
bases  his  claim.  If  the  matter  submitted  to  the  court  be  one  about 
which  there  is  no  law,  the  court  is  powerless,  as  it  is  only  author- 
ized to  apply  and  enforce  the  law.  So  it  follows  that  every  time 
a  plaintiff  comes  before  the  court  with  a  given  state  of  facts,  and 
asks  remedy  thereon,  he  necessarily  asserts  that  the  rules  of  law 
are  such  that  these  facts  entitle  him  to  the  relief  sought.  This  is 
a  tender  of  issue  to  the  defendant  on  this  asserted  rule  or  rules  of 
law.  The  presentation  of  the  facts  to  the  court,  for  its  investiga- 
tion and  decision,  is  also  an  assertion  that  the  facts  are  true,  and 
this  is  a  tender  to  the  defendant  of  an  issue  or  issues  of  fact.  If 
the  plaintiff  fail  on  either  of  these  issues,  he  can  not  recover.  In 
justice  the  defendant  should  be  permitted  to  controvert  either  or 
both  of  these  issues  and  to  deny  the  plaintiff's  propositions  of  law 
or  his  statement  of  facts,  or  both.  Different  systems  of  procedure 
differ  widely  on  these  points. 

As  all  persons,  and  particularly  those  selected  to  act  as  judges, 
are  presumed  to  know  the  law,  it  is  never  necessary,  and  rarely 
permissible,  to  plead  matters  of  law.  So  that  pleadings  tendering 
issues  are  statements  of  facts.  The  rule  is  that  every  fact  that  the 
pleader  desires  the  court  to  consider  in  determining  what  it  will 
do  must  be  plead.  The  court  will  not  go  outside  of  the  party's 
own  statement  to  hunt  up  facts  on  which  to  base  or  withhold  ac- 
tion in  his  favor.  This  is  probably  the  most  important  rule  of 
pleading,  enforced  alike  in  all  jurisdiction  and  under  all  systems. 
There  are  some  exceptions  to  it,  however.  Conditions  which  are 
almost  universal  need  not  be  plead ;  as,  in  suing  on  a  contract,  it 
need  not  be  alleged  that  the  parties  were  competent,  or  the  pur- 
pose lawful.  These  are  true  of  so  large  a  proportion  of  agree- 
ments that  these  general  conditions  are  presumed  as  to  all,  unless 
the  exception  be  plead  and  proved.  So  of  the  course  of  the  sea- 
sons, the  great  thoroughfares  of  commerce,  etc. 


PLEADINGS.  471 

In  addition  to  being  full,  pleadings  should  be  clear,  concise,  ac- 
curate, and  logical.  These  are,  however,  matters  of  form  and  are 
not  so  essential  as  fullness.  Fullness  is  not  to  be  confounded  with 
prolixity  and  verboseness.  These  are  great  vices  in  any  composi- 
tion, and  particularly  in  pleading,  and  usually  are  resorted  to  for 
lack  of  definite  information  and  thought.  There  are  also  certain 
formal  parts  of  pleadings  which  must  not  be  ignored.  The  court 
to  which  it  is  addressed,  the  term  to  which  the  suit  is  brought,  the 
names  and  residences  of  the  parties,  unless  they  are  already  in  the 
record,  should  be  shown,  and  also  the  relief  sought,  if  any. 

Defensive  Pleadings. — These  are  reasons  given  by  the  defend- 
ant why  the  court  applied  to  ought  not  to  give  the  relief  sought. 
These  may  be  few  or  many  in  a  given  case.  They  are  divided  into 
general  classes,  which  are  not  mutually  exclusive  of  each  other: 
(1)  Into  defenses  of  law  and  defenses  of  fact;  (2)  into  defenses 
against  the  particular  suit  and  defenses  against  the  cause  of 
action  on  which  the  suit  is  founded.  As  said,  these  classifications 
are  not  mutually  exclusive.  There  are  legal  defenses  which  only 
destroy  the  present  suit,  leaving  the  cause  of  action  unsettled,  and 
legal  defenses  which  settle  both  the  suit  and  the  cause  of  action  on 
which  it  is  based.  In  like  manner  there  are  defenses  based  on 
facts  which  accomplish  each  of  these  purposes. 

Defenses  based  on  matters  of  law  are  made  by  demurrer;  those 
based  on  facts  are  made  by  denials,  general  or  special,  by  matters 
in  confession  and  avoidance,  or  by  matters  of  estoppel.  Defenses 
which  only  settle  the  particular  suit  are  called  dilatory  defenses 
or  pleas ;  those  which  go  to  the  whole  cause  of  action,  are  defenses 
or  pleas  in  bar. 

A  demurrer  admits  the  facts  to  be  as  the  adverse  party  claims, 
but  insists  that  they  are  not  legally  sufficient  to  entitle  him  to  the 
relief  sought.  The  issue  thus  joined  is  always  decided  by  the 
judge. 

A  general  denial  raises  the  issue  that,  whatever  be  the  law,  the 
facts  submitted  by  the  adverse  party  are  not  true,  and  there f of 
he  is  not  entitled  to  the  relief  sought. 

A  special  denial  is  a  denial  of  some  one  or  more  facts  set  up  by 
the  adverse  party. 

A  plea  in  confession  and  avoidance  admits  that  some  or  all  of 
the  facts  set  up  by  the  adverse  party  are  true,  but  insists  thai 


472  AMERICAN  ELEMENTARY   LAW. 

there  are  other  facts  which,  taken  in  connection  with  those  ad- 
mitted, destroy  their  legal  effect  and  hence  disentitle  the  plaintiff 
to  the  remedy  to  which  the  admitted  facts  would  otherwise  entitle 
him. 

A  plea  in  estoppel  insists  that,  whatever  may  be  the  truth  re- 
garding the  facts  alleged  by  the  adverse  party,  he  cannot  legally 
recover  on  them  because  by  his  conduct  regarding  the  matter  he 
has  precluded  or  shut  himself  off  therefrom. 

These  defenses  of  fact,  in  Common  Law  courts,  are  tried  by 
jury ;  in  Chancery  courts,  by  the  judge  or  chancellor ;  and  in 
courts  of  blended  jurisdiction,  by  either  the  judge  or  the  jury,  as 
the  nature  of  the  case  and  the  action  of  the  parties  shall  require. 
Order  in  Which  Pleadings  are  Filed. 

The  first  pleading  in  a  case  is  by  the  plaintiff.  It  should  con- 
tain facts  which  make  out  a  prima  facie  case,  entitling  him  to  the 
relief  sought.  The  next  comes  from  the  defendant,  and  is  in  re- 
ply to  that  of  the  plaintiff.  If  this  reply  consist  only  of  denials  of 
law  or  fact,  or  both,  the  pleadings  close  there.  If  it  introduce 
new  matters,  the  plaintiff  may  reply  to  this  new  matter.  If  this 
be  only  by  denials  of  law  or  fact,  or  both,  the  pleadings  close  with 
it,  but  if  it  bring  in  new  matter,  the  defendant  may  reply  to  it, 
and  so  on  indefinitely.  The  pleadings  rarely  go  beyond  two  in- 
struments by  each  party,  and  usually  conclude  with  only  one  on 
each  side. 

These  different  instruments  have  different  names  in  different 
systems.  At  Common  Law  the  order  of  filing  pleadings  and  their 
respective  names  were  as  follows:  (1)  the  plaintiff's  declaration; 
(2)  defendant's  plea  or  demurrer;  (3)  the  plaintiff's  replica- 
tion; (4)  defendant's  rejoinder;  (5)  plaintiff's  sur- rejoinder ; 
(6)  defendant's  rebutter;  (7)   plaintiff's  sur- rebutter. 

In  Equity,  the  order  was  as  follows:  (1)  the  plaintiff's  bill  of 
complaint;  (2)  the  defendant's  answer,  plea,  disclaimer  or  de- 
murrer; (3)  plaintiff's  replication. 

In  Texas,  they  are  as  follows:  (1)  plaintiff's  original  petition; 
(2)  defendant's  original  answer;  (3)  plaintiff's  first  supple- 
mental petition;  (4)  defendant's  first  supplemental  answer; 
(5)  plaintiff's  second  supplemental  petition;  (6)  defendant 's  sec- 
ond supplemental  answer;  and  so  on  indefinitely,  if  it  be  neces- 
sary. 


PLEADINGS.  473 

Under  the  Codes  of  the  different  States  the  instruments  of 
pleading  have  different  names.  In  the  majority,  the  first  plead- 
ing filed  by  the  plaintiff  is  called  a  complaint,  in  others  it  is  called 
a  petition ;  in  all,  the  first  pleading  by  the  defendant  is  called  an 
answer.  In  most  of  these  States  the  pleadings  setting  up  facts, 
stop  here.  In  a  few,  the  plaintiff  is  permitted  to  file  a  response  to 
the  defendant's  answer.  This  is  called  a  reply.  In  none  of  the 
Code  States  can  the  defendant  file  any  response  to  this. 

Number  of  Defenses. 

In  no  one  respect  does  the  modern  method  of  pleading  differ 
more  from  the  ancient  Common  Law  than  in  the  number  of  de- 
fenses which  the  defendant  may  make.  Formerly,  he  was  confined 
to  one  defense,  either  of  law  or  fact,  and  no  matter  how  many 
good  reasons  there  might  really  exist  why  the  plaintiff  should  not 
recover,  the  defendant  could  only  get  the  advantage  of  one  of 
them.  This  was  somewhat  modified  in  the  later  Common  Law 
procedure,  and  was  practically  abrogated  in  Equity.  In  practi- 
cally every  State,  it  is  provided  that  a  defendant  may  make  as 
many  defenses  as  he  may  have,  provided  only  he  present  them  at 
the  same  time  and  in  due  order. 

Amendments. 

The  Common  Law  was  very  rigid  in  its  requirements  as  to 
pleading,  and  very  limited  in  its  permission  to  amend  and  cure 
defects  in  them.  This  has  been  very  greatly  changed  in  the 
modern  practice,  and  the  danger  now  seems  to  be  that  the  stabil- 
ity of  our  procedure  is  somewhat  endangered  by  the  ease  with 
which  mistakes  may  be  corrected.  The  rule  in  modern  practice  is 
that  defects  in  any  pleading  may  be  cured,  as  matter  of  right,  by 
filing  an  amendment  at  any  time  before  a  designated  stage  in  the 
trial  of  the  case,  and  may  be  cured  even  after  that,  if  the  judge 
shall  think  justice  and  right  require. 

Notice  of  Filing  Pleadings. 

The  filing  of  the  first  pleading  by  the  plaintiff  is,  under  the 
modern  practice,  the  beginning  of  the  suit;  and,  unless  the 
defendant  enters  an  appearance  in  some  way,  he  must  be  notified 
in  the  manner  required  by  law.  Telling  him  of  the  fact,  or  other 
actual  notice  to  him,  is  not  sufficient  in  actions  at  Law,  though  in 
some    Equity    proceedings,    where   the    chancellor   has    already 


474  AMERICAN   ELEMENTARY   LAW. 

granted  an  interlocutory  order,  it  is  sufficient,  for  some  purposes. 
In  most  jurisdictions  after  both  parties  are  before  the  court,  they 
are  expected  to  keep  themselves  advised  as  to  its  proceedings,  and 
getting  leave  from  the  court  to  file  any  pleading,  and  filing  it,  is 
all  that  is  required  in  case  of  any  proceeding.  Frequently,  even 
leave  from  the  judge  is  not  necessary.  In  other  jurisdictions  no- 
tice should  be  given. 

Motions. 

Frequently,  in  the  progress  of  litigation,  it  is  desired  to  have 
the  court  take  some  action  which  is  incidental  to  the  main  pro- 
ceeding, as  appointing  an  auditor,  or  ordering  a  survey  of  land, 
etc.  Such  action  is  invoked  by  an  application  usually  less  formal 
than  the  pleadings,  and  called  a  motion.  These  are  either  oral  or 
in  writing.  Sometimes  great  particularity  is  required,  and  the 
truth  of  the  matters  presented  must  be  supported  by  affidavit. 
Each  kind  of  motion  is  dealt  with  as  justice  and  expediency  seem 
to  require. 


CHAPTER  V. 

EVIDENCE. 

To  enable  the  court  to  decide  issues  of  fact  correctly,  it  must 
have  some  means  of  investigating  and  ascertaining  the  truth  re- 
garding them.  The  means  by  which  a  fact  is  proved  or  disproved 
is  called  evidence,  and  the  rules  of  law  governing  the  securing,  in- 
troduction and  effect  of  evidence  constitute  the  law  of  evidence. 

These  rules  relate  to  four  general  matters : 

(1)  Who  must  prove  ? 

(2)  "What  must  be  proven? 

(3)  By  what  means  may  he  prove? 

(4)  When  is  the  proof  sufficient ? 
Taking  these  up  in  order,  we  find : 

Who  Must  Prove? 

He  must  offer  evidence  who  is  dissatisfied  with  the  existing  con- 
ditions. The  person  conceiving  himself  to  be  aggrieved  brings  his 
suit  to  induce  the  court  to  give  him  relief.  He  states  his  griev- 
ance in  his  pleading,  and  when  the  trial  comes  on  must  introduce 
testimony  sufficient  to  establish  the  truth  of  his  complaint.  He 
therefore  takes  the  initiative  in  offering  evidence.  When  he  has 
produced  testimony  sufficient  to  induce  the  court  to  act  as  he  de- 
sires, he  closes.  By  the  introduction  of  testimony  having  the  fore- 
going effect  he  has  satisfied  himself  with  the  state  of  the  case,  but 
this  same  process  has  resulted  in  dissatisfying  his  adversary.  Be- 
fore any  testimony  was  given  the  latter  was  perfectly  willing  to 
submit  the  case  to  the  court  and  receive  a  decision  in  his  favor, 
because  the  plaintiff  had  not  proved  his  case ;  but  now  he  can  not 
do  so,  for  the  plaintiff  has  made  out  his  case.  Therefore,  the  de- 
fendant here  takes  up  the  laboring  oar  and  offers  his  testimony. 
If  he  succeeds  in  overthrowing  the  case  made  by  the  plaintiff,  he 
in  turn  becomes  satisfied  with  the  present  record,  and  the  plaintiff 
dissatisfied  with  it,  and  the  defendant  desists,  and  the  plaintiff 
begins  again.     So  the  process  would  go  on  indefinitely,  but  for 


476  AMERICAN  ELEMENTARY  LAW. 

certain  limits  placed  upon  the  parties,  in  the  interest  of  order  and 
expedition  of  the  business  of  the  court. 

Under  the  old  Common  Law  the  pleadings  were  continued  until 
they  were  narrowed  down  to  one  issue  of  fact  which  alone  was 
submitted  to  the  jury.  Under  these  conditions,  the  foregoing  facts 
were  expressed  in  two  rules.  The  first  was,  The  burden  of  proof 
is  on  him  who  asserts  the  affirmative  of  the  issue ;  and  the  second 
was,  The  burden  of  proof  never  shifts.  So  long  as  the  procedure 
forbade  the  submission  of  more  than  one  issue  these  two  rules 
could  be  enforced  without  confusion.  But  as  in  the  modern 
practice  a  number  of  issues  may  be  submitted  in  the  same  case  to 
the  same  jury  at  the  same  time,  on  some  of  which  the  plaintiff  and 
on  others  the  defendant  holds  the  affirmative,  a  different  state- 
ment is  now  necessary. 

It  is  still  true  that  as  to  each  issue  in  a  case  the  burden  of  proof 
is  on  him  who  seeks  benefit  from  its  establishment,  so  that  unless 
he  offers  testimony  prima  facie  sufficient  to  support  his  conten- 
tion on  that  issue,  it  will  be  decided  against  him.  If  he  does  make 
out  a  prima  facie  case  as  to  the  particular  issue,  the  necessity  of 
overcoming  this  by  his  adversary  at  once  arises,  and  either  he 
must  introduce  testimony  to  disprove  the  prima  facie  case  or  that 
issue  will  be  decided  against  him.  If  he  succeeds  in  accomplish- 
ing this,  he  thereby  makes  it  necessary  for  the  other  party 
to  strengthen  his  case  on  this  point.  This  he  can  do  only  by  in- 
troducing further  proof.  It  is  clear  that  this  is  a  process  in  which 
the  necessity  of  introducing  further  evidence  changes  from  time 
to  time  from  the  one  party  to  the  other.  In  this  sense  the  burden 
of  proof  as  to  each  issue  does  shift  from  one  party  to  the  other. 
But  after  all  the  testimony  on  this  issue  is  in,  it  is  still  incumbent 
upon  him  who  seeks  benefit  from  the  issue  to  satisfy  the  court  that 
his  contention  as  to  this  issue  is  correct.  So  that  the  burden  of 
ultimately  proving  the  truth  of  each  issue  at  all  times  rests  upon 
him  who  seeks  benefit  therefrom.  In  this  sense  the  burden  of 
proof  as  to  any  issue  never  shifts  from  him  who  will  profit  by  its 
establishment. 

The  foregoing  statements  are  equally  applicable  to  proving  a 
case  considered  as  a  whole.  He  who  is  dissatisfied  with  existing 
conditions,  and  on  that  account  brings  suit  to  obtain  relief,  must 
show  such  facts  as  prima  facie  entitle  him  to  relief.    "When  this  is 


EVIDENCE.  477 

done  the  burden  of  disproving  this  prima  facie  case  passes  over  to 
the  party  complained  against.  He  must  now  show  facts  which  de- 
stroy the  legal  effect  of  the  plaintiff's  prima  facie  case.  He  may 
do  this  by  disproving  the  facts  relied  upon  by  the  plaintiff,  or  by 
proving  additional  facts  which  show  the  plaintiff  not  entitled  to 
relief.  If  he  succeeds  in  either,  the  plaintiff  must  meet  this  sit- 
uation as  to  the  whole  case  and  introduce  facts  strengthening  his 
contention.  After  all  the  evidence  is  in  the  plaintiff  must  be  able 
to  show  that  he  is  entitled  to  relief  upon  the  whole  record.  Thus 
it  is  seen  that  during  the  progress  of  the  trial  the  necessity  for 
introducing  testimony,  not  only  as  to  particular  issues  but  as  to 
the  whole  case,  has  changed  from  time  to  time  from  one  party  to 
the  other  so  that  in  this  sense  the  burden  of  proof  has  shifted  from 
time  to  time.  Still  after  all  the  testimony  is  in  the  necessity  for 
making  out  his  case,  or  rather  of  satisfying  the  court  that  he  has 
made  it  out,  rests  on  the  plaintiff.  In  this  sense,  the  burden  of 
proof  never  shifts. 

What  Must  be  Proven? 

The  party  offering  evidence  must  prove  the  substance  of  his 
pleading.  He  is  not  required  to  prove  every  detail  of  his  pleading, 
but  such  facts  as  are,  in  substance,  legally  equivalent  to  it.  Facts 
are  legally  equivalent  if,  applying  the  same  rules  of  law  to  each, 
they  establish  the  same  legal  right  and  the  same  legal  wrong  and 
entitle  to  the  same  remedy.  If  they  tend  to  show  different  legal 
rights,  or  different  violations,  or  entitle  to  different  kinds  of  rem- 
edy, they  are  not  legally  equivalent. 

Means  of  Proof. 

This  opens  up  by  far  the  largest  field  in  the  law  of  evidence. 
Under  it  come  all  rules : 

(1)  As  to  the  instruments  through  which  evidence  may  be  in- 
troduced, witnesses  and  their  qualifications,  written  documents 
and  their  admissibility,  and  physical  things,  or  real  evidence,  or 
representatives  of  them,  as  photographs,  etc. 

(2)  The  nature  of  the  the  matters  which  may  be  introduced. 

(3)  The  relation  of  these  facts  to  the  matter  in  controversy. 

Witnesses. — A  witness  is  one  who  gives  evidence  in  a  legal  pro- 
ceeding, subject  to  the  penalties  of  the  law  for  false  swearing. 
The  general  rule  is  that  all  persons  are  competent  witnesses.    The 


■ITS  AMERICAN   ELEMENTARY   LAW. 

several  exceptions  are:  (1)  Persons  who  have  not  sufficient  intel- 
lect to  relate  transactions  as  to  which  they  are  interrogated,  or 
who  do  not  understand  the  obligation  of  an  oath;  (2)  persons  who 
have  been  convicted  of  a  felony  and  who  are  unpardoned.  At 
Common  Law,  interest  in  the  suit  and  lack  of  religious  belief  dis- 
qualify, and  these  remain  in  all  States  in  which  they  have  not 
been  changed  by  statute.  This  has,  however,  been  done  in  most 
States.  There  are  other  exceptions  in  particular  kinds  of  cases 
and  as  to  particular  persons  but  these  we  cannot  discuss. 

At  Common  Law  witnesses  were  required  to  be  sworn  and  thus 
to  call  upon  God  to  attest  the  truthfulness  of  their  testimony. 
This  is  still  true  in  all  the  States  which  have  adopted  the  Common 
Law  unless  it  has  been  changed  by  statute.  In  a  number  of  the 
States  statutes  have  been  enacted  requiring  witnesses  to  be  sworn 
in  the  way  most  binding  upon  their  consciences  and  subjecting 
them  to  the  pains  and  penalties  of  perjury,  whether  the  oath  or 
promise  of  truthfulness  be  made  with  or  without  reference  to 
God's  attestation. 

Questions  as  to  the  competency  of  witnesses  are  decided  by  the 
judge.  The  credibility  of  witnesses  and  the  weight  to  be  given  to 
oral  testimony  are  matters  for  the  jury.  Ordinarily  the  construc- 
tion and  legal  effect  of  written  evidence  is  for  the  judge,  though 
the  authenticity  and  genuineness  of  the  papers,  if  properly  put  in 
issue  by  the  pleadings,  is  decided  by  the  jury. 

Testimony  from  witnesses  must  be  given  by  the  witnesses  them- 
selves. In  the  earlier  Common  Law  practice  it  was  required  that 
the  witness  himself  should  be  brought  before  the  court.  He  was 
then  sworn  and  examined  in  open  court  before  the  judge  and 
jury.  This  is  still  reauired  in  criminal  cases,  with  some  few 
deviations  in  interest  of  the  defendant.  In  courts  of  Equity,  the 
witnesses  give  their  evidence  in  depositions.  This  has  now  been 
extended  to  Common  Law  courts,  until  the  rule  now  is  that  the 
testimony  of  any  witnesses  in  a  civil  suit  can  be  taken  and  used, 
subject  to  a  few  exceptions  varying  in  the  different  courts. 
Depositions  are  written  statements  made  by  a  witness  out  of 
court  and  under  oath,  in  response  to  questions  propounded  to  him 
by  the  parties  to  a  cause.  The  methods  of  asking  and  answering 
the  questions  differ,  but  the  foregoing  are  the  distinguishing 
characteristics. 

The  party  introducing  a  witness  before  the  court  examines  him 


EVIDENCE.  479 

first,  eliciting  from  him  such  facts  as  the  witness  knows  and  the 
party  desires.  When  he  is  through,  the  adverse  party  takes  the 
witness  and  cross-examines  him  on  the  matter  drawn  out  in  the 
first  examination,  and  then  the  party  introducing  him  is  afforded 
opportunity  to  examine  him  on  any  matter  on  which  he  may 
seemingly  have  contradicted  or  modified  his  former  statements, 
and  on  any  new  matter  which  the  second  party  may  have  elicited. 
Here  the  examination  closes  unless,  for  good  reason,  the  judge 
sees  fit  to  extend  it.  Each  witness  is  dealt  with  in  this  way. 
Written  instruments  are  offered  by  the  party  desiring  them. 
Their  genuineness  must  be  shown,  either  under  some  Common 
Law  or  statutory  rule,  or  they  will  be  excluded,  on  objection. 

If  one  party  attempt  to  prove  any  fact  not  admissible  for  any 
reason,  or  by  any  improper  way,  the  other  party  makes  his  objec- 
tion, stating  his  reasons,  and  the  judge  decides  the  question.  The 
person  against  whom  the  decision  is  given  may  except  to  it  and 
save  the  point  for  revision  on  appeal. 

Written  Instruments. — There  are  four  general  classes  of  docu< 
ments  whose  contents  or  effect  may  come  up  for  consideration. 
These  are : 

1.  Documents  which  are  the  sole  repositories  of  matters  which 
the  law  says  must  be  evidenced  by  writing  of  designated  kinds 
and  characteristics. 

2.  Documents  which  are  public  and  authentic  repositories  of 
specific  matters,  and  which  may  be  resorted  to  as  secondary  evi- 
dence in  specific  cases,  but  are  not  exclusive  sources  of  evidence 
of  the  matters  contained  therein. 

3.  Those  papers  which  are  repositories  of  matters  of  agreement 
between  parties  to  them  and  their  privies,  voluntarily  chosen  by 
such  parties  for  that  purpose,  the  matters  therein  evidenced  being 
of  such  nature  that  they  could  have  been  proved  by  parol  but  for 
such  choice  of  the  parties. 

4.  All  written  instruments  whose  contents  and  effect  may  be- 
come material  in  the  investigation  of  any  matter  before  a  court, 
and  which  do  not  come  within  one  or  the  other  of  the  preceding 
classes. 

The  first  of  these  general  classes  is  divided  into  several  sub- 
classes, the  most  important  of  which  are : 

(1)  The  official  records  evidencing  the  acts  of  public  officers  in 
which  the  public,  as  such,  is  directly  interested.     This  class 


480  AMERICAN   ELEMENTARY   LAW. 

includes  all  records  of  the  executive  and  legislative  departments 
which  are  public  in  their  nature. 

(2)  Official  records  of  public  acts  of  public  officers  in  which 
certain  private  parties  are  directly  and  primarily  concerned,  but 
in  which  the  public  also  has  a  material  concern  and  interest. 

This  class  includes  all  records  and  file  papers  of  judicial  pro- 
ceedings. 

(3)  Private  writings  evidencing  private  rights  of  such  a  char- 
acter that  the  law  says  they  can  only  be  evidenced  in  that  manner. 

This  class  includes  all  private  writings  evidencing  contracts 
and  rights  which  the  law  requires  to  be  evidenced  by  written  in- 
struments. They  are  mostly  those  contracts  which  the  Statute  of 
Frauds  requires  to  be  expressed  in  writing.  They  are  pricipally 
of  the  f ollowing  classes : 

(a)  Contracts  by  which  one  undertakes  to  bind  himself  for  the 
debt,  default,  or  miscarriage  of  another. 

(b)  Contracts  not  to  be  performed  within  a  year. 

(c)  Contracts  by  an  executor  or  administrator  to  bind  himself 
for  any  debts  of  the  estate  represented  by  him. 

(d)  Contracts  creating  an  estate  in  lands  for  more  than  one 
year. 

(e)  Reservations  of  rights  in  chattels  loaned  to  another  and 
permitted  to  remain  in  his  possession  for  more  than  two  years. 

(f )  Ante-nuptial  contracts,  and  some  others  of  infrequent  ap- 
plication. 

(4)  Official  records  of  official  acts  of  officers  of  political  subdi- 
visions of  the  State,  such  as  counties,  municipalities,  towns,  etc. 

Under  this  are  included  records  of  county  officers,  as  county 
surveyor,  assessor,  etc. ;  of  cities  and  towns,  such  as  minutes  of 
city  council,  city  assessor,  etc. 

The  second  of  these  general  classes  embraces: 

(1)  Registers  of  deeds  and  other  private  papers  affecting  pri- 
vate rights,  kept,  under  the  provisions  of  law,  by  public  officers. 

(2)  Official  registers  of  facts  respecting  personal  status,  a." 
births,  marriages,  rolls  of  soldiers,  etc. 

(3)  Records  required  by  law  to  be  kept  by  private  persons  re- 
garding matters  of  a  quasi-puhYic  character,  as  records  of  corpo- 
rate meetings  of  railroad  compauies,  and  other  guasi'-public  cor- 
porations. 


EVIDENCE.  481 

The  third  of  these  general  classes  embraces  all  those  instru- 
ments which  private  parties  have  prepared  and  executed  in  order 
to  show  the  agreement  which  they  have  reached,  or  fact  to  which 
they  have  assented,  when  such  action  was  voluntary  on  their  part; 
that  is,  when  the  transaction  was  not  such  as  the  law  required  to 
be  in  writing. 

The  fourth  class  indicates  its  scope  sufficiently  without  further 
elucidation. 

Genuineness  Must  be  Proved. 

No  paper  belonging  to  any  of  these  classes  can  be  received  in 
evidence  unless  its  genuineness  and  authenticity  is  proved  accord- 
ing to  the  rules  of  law  applicable  thereto. 

If  the  paper  is  a  public  record  it  may  be  proven  by  a  duly  au- 
thenticated copy.  The  attestation  and  authentication,  if  the 
record  is  one  existing  in  the  State  in  which  the  copy  is  to  be  used, 
must  be  made  according  to  the  requirements  of  the  local  law.  If 
the  record  exists  in  some  other  State,  it  must  be  authenticated 
and  attested  in  compliance  with  the  act  of  Congress. 

If  the  paper  is  a  private  one,  its  genuineness  may  be  proven  ac- 
cording to  the  local  law.  These  laws  usually  admit  of  two  meth- 
ods ;  one,  as  prescribed  by  the  local  statutes,  and  the  other,  as  at 
Common  Law.  The  local  statutes  cannot  be  given.  At  Common 
Law,  if  the  paper  has  no  subscribing  witnesses  its  execution  may 
be  proven  by  any  one  who  saw  the  party  executing  the  instrument 
sign  his  name  thereto,  or  by  proof  of  the  genuineness  of  the  sig- 
nature to  the  instrument  by  any  one  who  is  familiar  with  the 
hand  writing  of  the  party  whose  name  is  signed  and  can  swear  to 
its  genuineness.  If  the  paper  has  a  subscribing  witness  or  wit- 
nesses, its  execution  must  be  proved  by  one  or  more  of  the  wit- 
nesses if  they  are  living,  and  within  the  jurisdiction  of  the  court. 
If  all  the  witnesses  are  dead  or  inaccessible,  the  paper  may 
be  proven  by  proving  the  genuineness  of  the  signature  of  the  wit- 
nesses in  either  of  the  methods  above  indicated  with  reference  to 
unwitnessed  papers,  or  if  this  cannot  be  done,  by  proving  the 
handwriting  of  the  party  executing  the  paper  as  above  indicated. 

If  the  instrument  is  thirty  years  old  or  over,  comes  from  the 
proper  custody,  and  is  attended  with  circumstances  corroborative 
of  its  genuineness,  it  is  presumed  to  be  genuine  and  is  received  in 
evidence  without  further  proof,  subject  to  rebutting  evidence  as 
to  its  authenticity. 
31 


482  AMERICAN   ELEMENTARY   LAW. 

Best  Evidence  Rules. — The  law  requires  the  production  of  the 
best  evidence  of  which  the  case  is,  in  its  nature,  susceptible,  and 
no  other  evidence  is  ever  received  unless  it  be  brought  within 
some  positive  rule  of  law  providing  an  exception  to  or  relaxation 
of  this  rule. 

This  doctrine  has  application  in  those  cases  in  which  the  in- 
quiry involves  the  contents  and  legal  effect  of  written  instruments. 

Rule  1. — A  written  instrument  is  the  primary  and  exclusive 
means  of  proving  its  contents.  Other  evidence  of  such  contents, 
either  written  or  parol,  is  never  received  unless  it  be  brought 
within  some  positive  rule  of  law  providing  an  exception  or  relax- 
ation of  this  rule. 

It  would  more  accurately  express  the  present  state  of  the 
law  to  restrict  the  rule  announced  above  to  private  writings,  and 
to  make  another  to  the  effect  that  public  documents  of  all  sorts 
may  be  proved  by  properly  attested  and  authenticated  copies,  the 
method  of  attestation  or  authentication  being  determined  in  each 
State  by  the  law  of  that  jurisdiction. 

This  would  save  numerous  exceptions  and  relaxations  of  the 
rule  as  announced,  but  the  books  are  too  full  of  the  old  formulae  to 
permit  so  radical  a  departure ;  hence  I  give  you  the  rule  as  above. 

Rule  2. — The  legal  effect  of  a  written  instrument  must  be  de- 
termined by  its  own  terms,  and  extraneous  evidence  is  not  admis- 
sible to  change  such  legal  effect.  Therefore,  evidence  tending  to 
change  such  legal  effect  by  varying  the  terms  of  the  instrument, 
explaining  such  terms,  giving  to  them,  or  any  of  them,  a  meaning 
different  from  the  ordinary  legal  interpretation  thereof,  adding 
other  terms  thereto,  or  eliminating  any  of  those  used  therefrom, 
or  by  any  other  means,  is  never  to  be  received  unless  it  be  brought 
within  the  operation  of  some  positive  rule  of  law  providing  an  ex- 
ception or  relaxation  of  the  rule  here  stated. 

To  state  the  two  rules  together  concisely :  The  written  instru- 
ment is  the  best  evidence  of  its  contents,  and  the  contents  of  the 
instruments  are  the  best  evidence  of  its  legal  effect. 

These  rules  relate  to  the  contents  and  legal  effect  of  the  instru- 
ment, and  have  no  application  in  instances  in  which  the  mere  ex- 
istence of  the  paper  may  be  involved  incidentally  or  collaterally. 

Relaxations  of  Rule  1. — There  are  numerous  relaxations  of  the 
rule  that  the  written  instrument  itself  is  the  primary  and  exclu- 


EVIDENCE.  483 

sive  means  of  proving  its  contents.  These  are  based  on  considera- 
tions of  convenience  and  necessity,  or  of  public  policy.  They  may 
be  classified  as  follows : 

(1)  Relaxations  based  on  the  nature  of  the  writing. 

(2)  Relaxations  based  on  locality  and  possession  of  the  instru- 
ment. 

(3)  Relaxations  based  on  loss  or  destruction  of  the  instrument. 

(4)  Relaxations  based  on  connection  of  the  paper  with  the  lit- 
igation. 

These  are  of  sufficient  importance  to  require  more  detailed  con- 
sideration. 

Relaxations  hosed  on  the  nature  of  the  writing. — This  embraces 
all  those  cases  in  which  the  physical  conditions  render  it  imprac- 
ticable to  produce  the  original  writing,  as  written  inscriptions  on 
walls,  tombstones,  and  other  like  heavy  and  immovable  substances. 
In  such  cases,  the  writing  may  be  proved  by  parol  testimony. 

Also  those  cases  in  which  the  writings  are  scattered  over  vol- 
uminous books  and  records,  or  are  themselves  voluminous  and  of 
a  kind  as  to  which  expert  testimony  would  be  admissible.  Here 
the  expert  may  examine  the  writing  and  give,  by  parol,  the  result 
of  his  investigations. 

Also  those  in  which  the  public  and  physical  inconvenience  com- 
bine to  render  production  of  the  original  impracticable,  as  in  the 
case  of  public  records,  or  voluminous  records  of  more  private  na- 
ture. In  all  such  cases  secondary  evidence  is  admissible;  the 
statutes  of  each  State  provide  the  conditions. 

Under  these  Statutes  all  public  records  of  public  officers  in  the 
several  States  may  be  proved  within  the  respective  States  by 
copies  made  by  the  official  custodian  thereof,  and  duly  certified 
by  him  to  be  true  and  correct,  such  certificates  being  attested  by 
his  official  signature  and  by  the  seal  of  his  office,  if  he  has  a  seal. 
This  doctrine  embraces  legislative,  executive,  and  judicial  rec- 
ords, and  file  papers  in  judicial  proceedings. 

Legislative  and  executive  records  may  be  proved  also  by  copies 
published  by  authority. 

In  a  few  instances,  in  which  the  records  are  voluminous,  the 
facts  simple,  and  no  great  liability  to  mistake  exists,  the  officer 
may  certify  that  a  matter  appears  of  record,  or  is  shown  by  the 
record,  without  giving  a  copy. 


484  AMERICAN   ELEMENTARY   LAW. 

If  the  record  be  one  of  another  State  of  the  Union,  the  matter 
is  regulated  by  the  statutes  and  Constitution  of  the  United  States. 

This  relaxation  also  includes  records  of  private  corporations, 
etc.,  copies  of  which,  duly  attested  by  the  proper  corporate  officer 
and  seal  of  the  corporation,  may  be  admitted  for  or  against  the 
the  corporation. 

Relaxations  Based  on  Locality  and  Possession  of  the  Paper. — 
This  involves  all  cases  in  which  the  private  paper  exists,  but  is 
beyond  the  jurisdiction.  (1)  Outside  of  the  United  States. 
(2)  Outside  of  the  State,  but  in  the  United  States.  (3)  Outside 
the  county  in  which  the  court  is  held,  but  in  the  State. 

In  all  of  these  cases  the  law  is  practically  the  same.  The  party 
desiring  to  use  secondary  evidence  must  show  to  the  court  that  he 
has  used  all  the  means  which  the  law  places  at  his  command  to 
procure  the  testimony;  but  if,  having  done  all  he  can  to  obtain 
the  testimony  he  has  failed,  secondary  evidence  will  be  received. 

Relaxations  Based  on  Loss  or  Destruction  of  Instrument. — 
Where  it  is  claimed  that  an  instrument  is  lost  or  destroyed,  the 
party  offering  secondary  proof  must  show  that  there  was  such  a 
paper;  that  it  was  genuine;  and  that  he  was  not  legally  responsi- 
ble for  its  nonproduction.  The  last  he  can  do  by  proving  that  he 
had  nothing  to  do  with  its  loss  or  destruction ;  or,  if  he  did,  that 
the  circumstances  are  such  as  to  to  acquit  him  of  suspicion  of  sup- 
pressing the  testimony  by  so  doing.  Having  done  this,  he  must 
prove  its  contents  as  accurately  and  fully  as  he  can. 

Relaxations  Based  on  the  Connection  of  the  Paper  urith  the 
Litigation  and  with  the  Parties  to  It. — If  the  paper  is  directly  in 
issue  and  within  the  jurisdiction  of  the  court,  but  in  the  posses- 
sion of  one  not  a  party  to  the  suit,  to  entitle  the  party  to  intro- 
duce secondary  evidence,  he  must  also  have  exhausted  his  legal 
means  of  procuring  the  paper.  In  case  of  ordinary  witness, 
within  the  jurisdiction  of  the  court,  he  should  serve  him  with  a 
subpoena  duces  tee  ion,  which  is  a  command  from  the  court  where 
the  case  is  pending  to  attend  the  trial  of  the  case  and  bring  the 
paper  with  him.  If  the  witness  cannot  be  compelled  to  attend 
by  subpoena,  as  a  female,  a  sick  or  aged  person,  a  nonresident  of 
the  county,  etc.,  effort  should  be  made  to  take  his  deposition  and 


EVIDENCE.  485 

have  the  paper  attached.  Whenever  the  proper  effort  has  been 
made  and  the  paper  is  not  produced,  secondary  evidence  is  ad- 
missible. If  the  witness  attends,  but  declines  to  furnish  the 
paper  to  be  filed  and  used  in  evidence,  if  the  paper  be  his  prop- 
erty and  neither  party  to  the  suit  has  any  property  in  it  or  direct 
interest  in  it,  the  court  will  not  compel  the  party,  over  his  ob- 
jection, to  part  with  his  property,  and  will  either  permit  it  to  be 
examined  by  the  jury  and  a  copy  left  and  the  original  returned 
to  the  owner,  or  will  permit  secondary  evidence  in  the  first 
place  and  not  use  the  instrument  at  all.  If  the  instrument  be- 
longs to  the  party  to  the  suit  and  is  unlawfully  in  the  possession 
of  the  witness,  and  this  fact  is  manifest  to  the  court,  the  court 
will  compel  the  party  to  permit  the  paper  to  be  used  in  evidence. 

If -the  paper  is  directly  in  issue  but  in  the  possession  of  the  ad- 
verse party,  the  means  provided  by  law  is  to  give  notice  to  such 
party  to  produce  the  paper.  This  notice  is  not  necessarily  an  offi- 
cial process,  though  it  may  be  given  through  the  officers  of  the 
court.  It  is  usually  given  by  the  party  or  his  attorney.  It  must 
describe  the  paper  desired  with  reasonable  accuracy;  must  be 
given  to  the  party  having  it  in  possession  or  control  a  reasonably 
sufficient  time  before  the  trial  to  enable  the  party  to  procure  and 
produce  it.  The  instrument  cannot  be  demanded  until  the  party 
desiring  it  enters  on  his  case.  If  it  is  produced,  its  genuineness 
does  not  have  to  be  proved,  for  it  is  practically  admitted  by  both 
parties;  if  it  is  not  produced,  the  party  desiring  the  secondary 
evidence  must  prove  the  existence  and  genuineness  of  the  paper, 
and  then  must  show  its  contents  as  accurately  and  fully  as  he  can. 

If  the  paper  is  a  private  one  between  parties  other  than  those 
litigating,  and  is  not  directly  in  issue  in  the  case,  the  rule  as  to 
the  paper  being  the  best  evidence  of  its  contents  is  not  so  strictly 
applied.  A  number  of  authorities  say  that  it  is  not  to  be  applied 
at  all.  The  better  considered  cases,  however,  hold  that  the  spirit 
of  the  rule,  but  not  its  letter,  will  be  applied,  and  if  the  circum- 
stances were  such  as  to  charge  the  party  with  notice  that  such  evi- 
dence would  be  needed  and  the  paper  could  have  been  procured 
by  him  by  the  use  of  reasonable  diligence,  after  he  had  such  no- 
tice, secondary  evidence  will  not  be  admitted;  but  unless  these 
conditions  exist  such  proof  will  be  heard. 


486  AMERICAN   ELEMENTARY  LAW. 

Unless  the  circumstances  of  the  case  bring  the  offered  facts 
within  one  or  the  other  of  the  preceding  instances  of  relaxation, 
and  compliance  with  the  prescribed  preliminaries  are  shown,  no 
evidence  as  to  the  contents  of  the  paper  can  be  offered  except  the 
paper  itself. 

Exceptions  to  Rule  2. — The  rule  that  the  contents  of  a  written 
instrument  are  the  best  evidence  of  its  legal  effect  also  has  some 
real  exceptions.  There  are  also  some  instances  in  which  parol 
testimony  is  received  that  are  often  treated  as  exceptions  to  this 
rule,  which,  upon  closer  inspection,  are  found  not  to  be  exceptions 
but  matters  outside  of  the  rule  to  which  it  has  no  application. 

The  real  exceptions  exist  in  those  cases  in  which  the  parties  are 
excused  from  producing  the  written  instrument  and  are  permit- 
ted to  prove  the  facts  evidenced  thereby  by  parol,  or  those 
in  which,  though  the  instrument  is  in  evidence,  parol  testimony 
may  be  received  of  facts  the  effect  of  which  is  to  modify  the  in- 
strument in  some  regard  and  give  to  it  a  different  interpretation, 
meaning,  or  legal  consequence  than  it  would  have  if  left  to  speak 
entirely  for  itself. 

Under  these  real  exceptions  parol  testimony  will  be  received  in 
the  following  cases : 

(1)  When  the  official  character  of  a  person  is  not  directly  in 
issue  but  arises  incidentally ;  parol  evidence  will  be  received  to 
show  that  he  acted  and  was  recognized  as  such  officer  without  re- 
quiring the  production  of  his  commission. 

(2)  "When  a  party  is  in  fact  an  agent  of  another  and  has 
entered  into  a  written  contract  in  connection  with  the  business  of 
his  principal,  but  in  his  own  name,  parol  proof  may  be  received 
as  to  the  fact  of  agency,  although  this  makes  the  contract  binding 
on  parties  not  mentioned  therein. 

(3)  The  real  consideration  of  a  contract  may  be  proved  by 
parol  although  it  is  different  from  that  set  out  in  the  paper  itself. 
This  exception  does  not  extend  to  cases  in  which  the  real  or  re- 
cited consideration  consists  of  promises  or  undertakings.  This 
would  be  to  change,  not  the  consideration  only,  but  the  agreement 
itself. 

(4)  "Words  or  phrases  used  in  a  contract  relating  to  a  particu- 
lar business  may  be  explained  by  parol  testimony  showing  their 
meaning  according  to  the  custom  and  usuage  of  the  particular 


EVIDENCE.  487 

business  in  the  locality  in  which  the  contract  was  drawn.  No  cus- 
tom or  usage  which  is  contrary  to  any  rule  of  law  or  any  settled 
rule  of  legal  construction  can  ever  be  shown. 

(5)  A  written  contract  which  contains  no  conditions  may  be 
shown  by  parol  never  to  have  gone  into  effect  because  it  was  not 
to  be  operative  until  the  happening  of  some  event  which  has 
never  taken  place. 

(6)  In  contracts  of  sale  of  personal  property,  facts  from  which 
the  law  implies  a  warranty  of  quality  may  be  shown  by  parol 
though  the  written  contract  is  silent  on  that  subject. 

(7)  Receipts  for  money  may  be  explained,  modified,  or  contra- 
dicted by  parol. 

(8)  An  instrument  appearing  on  its  face  to  be  an  absolute  deed 
may  be  shown  by  parol  to  be  a  mortgage. 

(9)  Facts  creating  a  resulting  trust  may  be  shown  by  parol. 

Parol  testimony  is  often  received  in  connection  with  written  in- 
struments to  show  that  there  is  in  fact  no  contract  between  the 
parties,  or  to  prove  such  facts  as  are  necessary  to  make  the  con- 
tract operative  by  identifying  the  matter  to  which  it  relates;  or 
to  prove  additional  agreements  relating  to  the  same  thing  or  sub- 
ject matter  partially  covered  by  the  written  contract,  but  which 
were  not  understood  nor  intended  by  the  parties  to  be  covered  by 
the  writing. 

It  is  under  the  first  of  these  doctrines  that  parol  testimony  is 
received  to  show  mutual  mistake  of  the  parties  which  does  not 
contradict  or  vary  the  terms  of  the  contract  but  establishes  the 
fact  that  no  contract  ever  exists.  Proof  of  facts  showing  fraud 
or  duress  are  received  on  the  same  principle.  The  effect  of  this 
testimony  is  to  show  that  there  was  never  genuine  agreement  and 
consequently  that  no  real  contract  ever  existed. 

Under  the  second  of  these  doctrines  parol  testimony  is  received, 
not  to  destroy  nor  to  modify  the  contract,  but  to  give  it  real  effect 
according  to  the  real  intent  of  the  parties.  Thus,  if  A  buys 
a  horse  from  B  and  receives  a  bill  of  sale  for  him,  and  B  has  two 
horses,  to  each  of  which  the  description  in  the  bill  of  sale  is 
equally  applicable,  parol  testimony  showing  which  horse  in  fact 
was  sold  only  makes  certain  and  effective  the  agreement  between 
the  parties. 


488  AMERICAN  ELEMENTARY  LAW. 

The  third  doctrine,  by  its  own  terms,  is  outside  of  the  rule. 
Here  the  party  offering  the  parol  testimony  recognizes  fully  the 
terms  and  effect  of  the  written  contract,  but  says  in  addition  to 
that  agreement  that  there  were  other  agreements  closely  related 
to  but  not  covered  by  nor  contradictory  to  that  which  ought  to  be 
enforced. 

Demonstrative  or  Real  Evidence. — This  brings  us  to  the  con- 
sideration of  the  use  of  things  as  evidence.  If  the  inquiry 
involves  the  existence  or  present  condition  of  some  material  thing, 
the  most  direct  and  logical  evidence  conceivable  is  the  thing  itself. 
This  is  partially  recognized  by  the  law,  and  in  many  cases  such 
evidence  is  received.  It  is  under  this  rule  that  the  instrument 
with  which  crime  is  alleged  to  have  been  committed,  as  a  gun  or 
knife,  or  the  garnments  worn  by  the  party  at  the  time  of  injury 
showing  the  effects  of  violence,  etc.,  may  be  brought  before  the 
court  and  shown  the  jury.    Many  similar  instances  could  be  given. 

The  full  force  of  the  doctrine  is,  however,  much  limited  by 
other  considerations.    Among  these  are: 

(1)  Impracticability,  and  inconvenience  to  the  court  and  jury. 

(2)  That  the  party  is  not  confronted  with  the  witness,  and  has 
no  opportunity  of  cross-examination. 

(3)  Impossibility  of  making  any  accurate  record,  or  furnishing 
to  the  appellate  court  any  complete  transcript  of  what  took  place 
and  was  considered  in  the  trial  in  the  court  below. 

(4)  When  exhibition  of  the  person  is  not  voluntary,  but  is 
sought  to  be  compelled,  violation  of  sanctity  of  the  person  of  the 
one  compelled  to  make  the  exhibition,  and  compelling  one  to  give 
evidence  against  himself. 

(5)  Immodesty  and  impropriety  of  the  proceeding. 

(6)  Arousing  prejudice  by  such  exhibition. 

(7)  Arousing  sympathy  by  the  exhibition. 

Different  courts  deal  differently  with  these  several  objections. 
Anciently,  such  evidence  was  received  in  many  cases ;  later,  it  be- 
came less  frequent ;  but,  later  still,  it  seems  to  be  gaining  ground. 

The  trend  of  the  modern  authorities  seems  to  be  that,  if  there 
be  a  material  thing  which  can  be  produced  before  the  court  and 
its  condition  is  reasonably  calculated  to  throw  light  on  the  matter 
in  controversy,  it  will  be  received  and  considered.  But,  if  the 
dispute  involve  a  locality  or  something  which  can  not  be  brought 


EVIDENCE.  489 

before  the  court,  the  judge  and  jury  will  not  be  compelled,  at  the 
request  of  either  party,  to  leave  the  courtroom  and  make  an  in- 
spection ;  though,  if  all  the  parties  to  the  suit  agree  freely  and 
without  compulsion  for  the  court  to  do  so,  and  this  is  done,  it  will 
not  be  error.  Also,  if  the  controversy  involves  the  condition  of 
the  body  of  a  person,  the  person  himself  may  exhibit  the  part  in- 
volved before  the  court  and  jury,  provided  the  exhibition  is  not 
immodest  and  indecent,  but  that  he  can  not  be  compelled  to  make 
such  exhibition  at  the  demand  of  the  adverse  party.  Some  courts 
claim  the  power  to  appoint  one  or  more  physicians  to  make  an  ex- 
amination of  the  person  and  testify  as  to  the  result;  others  dis- 
claim any  such  power.  How  this  last  point  will  finally  be  decided, 
it  is  impossible  to  tell  at  this  time. 

Closely  akin  to  the  foregoing  subject  is  the  use  of  material  rep- 
resentations of  material  things  in  evidence.  This  is  very  fre- 
quently done,  but  always  on  condition  that  proof  be  offered  show- 
ing the  correctness  and  accuracy  of  the  representation.  The  most 
frequent  illustration  of  this  doctrine  is  in  the  use  of  maps  or  plots 
of  localities  which  are  involved  in  the  issues  before  the  court,  as 
in  cases  of  location  of  lands,  boundaries,  and  of  books  in  unlawful 
interference  with  copyrights,  etc.  Models  of  bridges  and  other 
structures  are  often  used.  With  the  art  of  photography  there 
arose  a  new  occasion  to  apply  old  rules,  and  many  interesting  de- 
cisions have  been  made  as  to  the  admissibility  of  such  representa- 
tions. The  present  holding  is  that  the  photograph  is  not  prima 
facie  evidence  of  its  own  correctness,  and  hence  is  not  admissible 
without  proof  as  to  its  accuracy  and  reliability;  but  when  this  is 
proved,  the  photograph  will  be  received.  The  same  rule  obtains 
as  to  X-ray  pictures. 


CHAPTER  VL 

EVIDENCE  (CONTD.) 

Nature  of  the  Matters  Which  May  be  Introduced. 

Facts. — The  first  rule  here  is  that  only  facts  are  to  be  received. 
Opinions,  inferences  and  suppositions  are  to  be  excluded.  Facts, 
in  this  connection,  are  matters  which  are  within  the  personal 
knowledge  of  the  witness,  which  have  come  to  him  directly 
through  the  use  of  his  senses  at  the  time  the  matter  transpired. 
If  the  witness  claims  to  have  such  knowledge,  and  the  matter  is  of 
such  kind  that  it  may  be  apprehended  through  the  senses,  it  is  a 
fact,  within  this  rule,  without  reference  to  its  truth  or  falsity. 

To  the  rule  excluding  opinions  there  are  some  exceptions.  The 
first  is  in  behalf  of  the  opinions  of  experts.  Experts  are  persons 
who,  from  previous  study  and  experience,  have  more  than  ordi- 
nary information  on  special  subjects.  These  subjects  must  be 
such  as  are  not  open  to  ordinary  observation,  but  require  peculiar 
training  and  skill  to  understand.  Persons  possessing  these  pecul- 
iar qualifications  are  permitted  to  give  their  opinions  as  to  the 
matters  within  their  special  sphere  of  knowledge.  These  opinions 
may  be  based  on  facts  coming  within  the  knowledge  of  the  expert, 
or  he  may  have  facts  detailed  to  him  hypothetically  and  be  asked 
his  expert  opinion  on  them. 

The  second  exception  is  as  to  nonexperts,  that  is,  ordinary  wit- 
nesses. The  rule  as  to  these  is  that  they  can  not  give  opinions,  but 
must  state  the  facts  within  their  knowledge,  and  let  the  jury  draw 
all  inferences.  In  the  ease  of  the  expert,  he  is  supposed  to  be 
better  qualified  than  the  ordinary  juror  to  make  correct  deduc- 
tions in  his  special  line;  but,  with  the  nonexpert,  no  such  pre- 
sumption holds.  He  and  the  jurors  are  supposed  to  be  on  an 
equality  as  to  this.  So  the  exception  in  his  case  is  based  on  a  dif- 
ferent reason.  In  some  matters,  it  is  impossible  for  any  one  to 
convey  to  another  all  the  impressions  received  by  him.  These  in- 
communicable impressions,  and  the  facts  constituting  them,  are 
often  potential  in  determining  the  quality  of  conduct.     In  such 


EVIDENCE.  491 

ease,  the  nonexpert  witness  gives  the  facts  in  his  mind  as  far  as  he 
can,  and  then  is  permitted  to  express  his  opinion,  based  on  the  re- 
lated facts  and  those  accompanying  them  which  he  is  unable  to 
reproduce. 

Let  us  take,  as  an  example,  a  case  in  which  the  sanity  of  a 
person  is  involved.  This  is  a  matter  as  to  which  there  is  special 
information  and  skill.  One  who  has  made  a  specialty  of  mental 
disease,  if  he  knows  the  person  and  has  had  opportunity  for  ex- 
amination and  treatment,  can  testify  as  to  the  facts,  and,  in  addi- 
tion, give  his  expert  opinion  as  to  the  mental  condition.  If  he 
does  not  know  the  person,  he  can  stay  in  the  courtroom  while  the 
trial  is  progressing,  and  give  his  opinion  from  the  facts  as 
detailed  by  the  witnesses.  Or,  if  he  has  not  heard  the  testimony, 
he  may  be  asked,  if  certain  facts  be  true,  what  his  opinion  is. 
Thus,  an  expert  can  give  his  opinion  in  either  of  three  ways.  A 
nonexpert  can  not  give  his  opinion  except  on  facts  within  his  own 
knowledge.  That  is,  if  he  knows  the  person,  he  may  tell  all  he  has 
seen,  heard  or  noticed  of  his  conduct,  so  far  as  he  may  be  able,  and 
if  he  has  had  good  opportunity  for  observation  he  can  then  give 
his  opinion  as  to  the  mental  condition.  So  in  other  similar  mat- 
ters. 

There  are  other  statements  that  may  be  received  in  evidence 
which,  in  their  nature,  are  largely  matters  of  opinion.  Take  evi- 
dence as  to  the  value  of  property  of  ordinary  kinds.  This  can 
rarely  be  reduced  to  a  certainty.  In  a  few  instances,  in  which  the 
thing  can  be  strictly  classified  and  has  a  regular  market  price,  as 
cotton  or  grains,  this  can  be  done ;  but,  usually,  there  is  no  fixed 
market  price  for  the  particular  thing  in  controversy.  In  such 
cases,  witnesses  who  are  shown  to  have  fair  knowledge  of  the 
thing  and  selling  prices  of  things  of  like  kind  at  the  time  and 
place  to  which  the  inquiry  relates,  may  state  their  estimates. 

Classifications  of  Evidence. — There  are  a  number  of  different 
rules  regarding  facts  which  may  be  received  in  evidence.  That 
these  may  be  understood  and  applied,  it  is  well  to  follow  some  of 
the  legal  classifications  of  the  subject  as  follows : 

(1)  "When  classified  with  reference  to  its  sources,  evidence  is 
divided  into  original  and  hearsay. 

(2)  With  relation  to  its  nature,  into  primary  and  secondary. 

(3)  With  reference  to  its  form,  or  the  means  through  which  it 


492  AMERICAN   ELEMENTARY   LAW. 

is  presented  to  the  court,  into  parol,  written,  and  real  or  demon- 
strative. 

(4)  "With  reference  to  its  connection  with  the  matter  to  be 
proved,  into  direct  and  circumstantial. 

(5)  "With  reference  to  its  conformity  to  testimony  already  in 
the  the  record,  into  contradictory  and  corroborative. 

(6)  "With  reference  to  its  repetition  of  what  is  already  in  the 
record,  into  independent  and  cumulative. 

It  is  evident  that  these  several  groupings  are  not  mutually  ex- 
clusive. 

Original  and  Hearsay. — Original  evidence  is  that  given  by 
a  witness,  as  of  his  own  knowledge.  It  represents  that  which  the 
witness  claims  to  have  experienced  or  to  have  observed  himself. 
Its  value  and  weight  depends  on  the  credibility  of  only  one  per- 
son. 

Hearsay  evidence  is  that  given  not  as  of  the  witness'  own 
knowledge.  The  fact  sought  to  be  established  thereby  did  not 
come  within  the  experience  or  observation  of  the  witness  himself 
but  of  some  other  person  who  has  made  statements  in  the  witness' 
presence  reciting  certain  matters  involved  in  the  controversy  and 
the  witness  repeats  these  statements  for  the  purpose  of  proving 
that  the  matters  recited  therein  are  true.  Hearsay  testimony  thus 
necessarily  involves  the  credibility  of  two  witnesses ;  first,  that  of 
the  party  making  the  statement  in  the  presence  of  the  witness, 
and  second,  that  of  the  witness  who  undertakes  to  repeat  it  for  the 
purpose  of  showing  the  truth  of  the  matters  recited. 

Hearsay  does  not  include  all  repetitions  of  statements  made  by 
others.  "When  the  purpose  is  simply  to  prove  that  a  certain  state- 
ment was  made  by  a  certain  party  at  a  certain  time,  and  not  to 
prove  the  truth  of  the  matter  contained  in  the  statement,  the 
testimony  is  not  hearsay. 

It  must  be  borne  in  mind  that  the  purpose  of  evidence  is  to  de- 
velop the  truth.  Those  sources  and  means  of  information  which 
are  most  directly  connected  with  the  facts  sought  to  be  proved  are 
first  to  be  resorted  to  and  exhausted  before  the  less  satisfactory 
aids  can  be  invoked ;  hence,  original  evidence  is  always  preferred 
to  hearsay,  and  the  latter  is  rarely  admitted  until  it  is  reasonably 
certain  that  the  former  cannot  be  adduced  as  to  the  particular 
point  under  investigation.    Even  when  it  is  shown  that  original 


EVIDENCE.  493 

evidence  cannot  be  procured  it  by  no  means  follows,  that  hearsay 
will  be  admitted,  for  even  under  these  circumstances,  the  admis- 
sion of  hearsay  is  exceptional.  The  rule  is  that  he  who  is  unable 
to  procure  original  evidence  to  sustain  his  contention  must  abide 
by  the  result.  This  is  not  an  arbitrary  rule  without  sanction  of 
justice  and  support  of  reason  but  is  founded  on  sound  principle. 
Among  the  strong  reasons  urged  against  hearsay  are  the  fol- 
lowing : 

(1)  It  introduces  into  the  case  a  double  opportunity  for  unin- 
tentional or  willful  falsity.  The  credibility  of  two  witnesses  has 
to  be  passed  on ;  this  involves  as  to  each  of  these  the  questions  as 
to  meaning,  character,  capacity,  motive,  opportunity,  etc. 

(2)  The  party  whose  statement  is  repeated  in  making  it  was 
not  subjected  to  the  same  processes  for  securing  care  and  exact- 
ness in  his  statement,  nor  are  his  motives  to  confine  himself 
strictly  to  the  truth  so  great. 

(A)  He  most  frequently  has  no  idea  at  the  time  of  making  the 
statement  that  there  is  any  especial  importance  to  be  attached  to 
it,  or  any  special  reason  for  him  to  be  careful  as  to  his  words,  or 
that  serious  consequences  are  likely  to  follow  therefrom. 

(B)  He  does  not  have  his  conscience  bound  by  an  oath. 

(C)  He  is  not  subject  to  punishment  for  perjury. 

(D)  He  cannot  be  cross-examined. 

(3)  The  judge  and  the  jury  do  not  have  the  same  opportunity 
to  pass  upon  the  credibility  of  the  witness  as  they  would  if  he 
were  before  them  in  person,  and  they  could  observe  his  conduct, 
bearing,  etc. 

These  reasons  are  sufficient  to  sustain  the  general  rule  of  the 
law  that  hearsay  is  not  to  be  received,  and  to  compel  the  party 
desiring  to  introduce  it  in  any  particular  case  to  show  some  af- 
firmative authority  for  so  doing. 

Primary  and  Secondary. — Primary  evidence  is  that  which  the 
nature  of  the  fact  offered  to  be  proved  shows  is  the  natural  and 
first  means  by  which  such  fact  is  susceptible  of  proof. 

Secondary  evidence  is  that  which  in  itself  suggests  that  there  is 
a  better  and  more  direct  means  by  which  the  fact  offered  to 
be  proved,  might  be  proved. 

It  is  upon  the  distinction  between  primary  and  secondary  evi- 
dence that  the  so-called  best  evidence  rule  is  based.    This  rule  is 


494  AMERICAN   ELEMENTARY   LAW. 

that  every  fact  must  be  proved  by  the  best  evidence  of  which  it  is 
in  its  nature,  susceptible  of  being  proved.  This  rule  is  both  in- 
clusive and  exclusive  requiring  the  production  of  the  best  of  pri- 
mary evidence,  and  excluding  secondary. 

This  rule  has  its  most  frequent  application  with  reference  to 
the  contents  and  effect  of  written  instruments,  as  to  which  it  has 
been  considered  at  some  length  under  Means  of  Proof. 

The  rules  pertaining  to  the  form  of  evidence  and  the  means 
through  which  it  is  presented  have  already  been  considered. 

Direct  and  Circumstantial. — The  distinction  between  direct 
and  circumstantial  evidence  is  based  upon  the  connection  of  the 
proposed  fact  with  the  issues  in  the  case.  Direct  evidence  is  that 
which  tends  immediately  to  prove  or  disprove  some  fact  in  issue 
in  the  case.  Circumstantial  evidence  is  that  which  tends  to  prove 
or  disprove  the  existence  of  some  fact  the  truth  of  which  is  not 
directly  in  issue  but  the  existence  or  nonexistence  of  which  affords 
a  reasonable  basis  for  believing  or  disbelieving  some  matter  di- 
rectly in  issue  in  the  case. 

Both  direct  and  circumstantial  testimony  are  admissible,  if 
relevant  and  offered  by  the  proper  means  of  proof.  The  weight 
to  be  given  direct  testimony  is  ordinarily  a  matter  left  to  the  jury 
for  determination  without  instruction  from  the  judge.  It  is 
usual,  howover,  in  criminal  cases  depending  on  circumstantial 
evidence,  to  instruct  the  jury  specially  with  reference  thereto. 
The  rule  on  this  subject  is  substantially  as  follows :  Every  fact  in 
the  chain  of  circumstances  which  the  jury  relies  upon  as  a  basis 
for  its  verdict  of  guilty,  must  be  proved  with  the  same  degree  of 
certainty  as  is  required  as  to  the  main  fact  in  issue,  that  is,  be- 
yond a  reasonable  doubt ;  all  the  facts  so  established  and  so  taken 
into  account  must  be  consistent  with  each  other;  and  must  not 
only  be  consistent  with  the  guilt  of  the  accused,  but  must  be  in- 
consistent with  every  reasonable  hypothesis  except  that  of  his 
guilt. 

Contradictory  and  Corroborative. — Items  of  testimony  which 
are  inconsistent  and  conflicting,  tending  to  lead  the  mind  to  dif- 
ferent conclusions,  are  called  contradictory.  Items  of  testimony 
which  tend  to  lead  to  the  same  conclusion  are  called  corroborative. 
This  distinction  does  not  relate  to  the  admission  or  rejection  of 
evidence,  but  to  its  effect  upon  the  verdict. 


EVIDENCE.  495 

Independent  and  Cumulative. — Testimony  which  brings  a  new 
fact  into  the  record  is  called  independent.  Testimony  which 
duplicates  or  repeats  facts  already  in  the  record  is  called  cumula- 
tive. This  distinction  is  chiefly  of  value  in  connection  with  mo- 
tions for  a  new  trial  based  on  newly  discovered  testimony.  If 
the  newly  discovered  facts  are  independent,  the  court  will  con- 
sider them,  and  other  necessary  circumstances  concurring  will 
grant  the  new  trial.  New  trials  are  very  rarely  granted  to  give 
the  benefit  of  newly  discovered  testimony  if  such  testimony  is 
cumulative  in  its  nature. 

Res  Gestce. — There  are  some  matters  which  are  frequently  pre- 
sented to  the  court  as  evidence  which  are  quite  difficult  to  clas- 
sify. From  some  points  of  view  they  may  be  regarded  as  original 
testimony,  while  from  others  they  seem  to  be  hearsay ;  sometimes 
they  may  be  looked  upon  as  primary  and  at  others  as  secondary 
evidence.  Among  the  more  important  of  these  matters  of  doubt- 
ful nature  are  verbal  declarations  made  at  the  time  of  the  occur- 
rence of  some  act  under  investigation  or  so  immediately  thereto- 
fore or  thereafter  as  to  be  legally  regarded  as  a  part  of  the  trans- 
action.   These  declarations  are  usually  known  as  res  gestce. 

Words  used  at  the  time  and  place  of  any  transaction  and  so  in- 
timately connected  therewith  as  to  be  a  part  and  parcel  of  it,  are 
as  admissible  as  any  other  matter  then  and  there  transpiring. 
They  are  received  in  order  to  put  the  judge  and  jury  as  nearly 
as  possible  in  the  exact  position  of  the  parties  and  to  enable  them 
to  understand  as  fully  as  possible  everything  that  took  place,  and 
thus  to  qualify  them  to  judge  of  the  conduct  of  the  parties  from 
the  most  intelligent  point  of  view  possible.  It  is  immaterial 
whether  such  statement  be  made  by  the  parties  whose  conduct  is 
under  investigation  or  by  others. 

The  admissibility  of  such  statements  depends  upon  their  con- 
nection with  the  matter  at  issue.  If  that  is  so  close  that  they  may 
fairly  be  said  to  be  a  part  thereof,  they  are  admissible.  If  the 
statements  are  not  strictly  speaking  simultaneous  with  the  act 
under  consideration  but  precede  or  follow  it,  the  question  arises: 
What  length  of  time  must  elapse  before  the  words  are  so  sepa- 
rated from  the  transaction  as  to  preclude  the  repetition  of  the 
statement  as  evidence?  In  such  case  the  facts  and  circumstances 
must  be  considered,  and  if  from  them  the  statement,  notwith- 


496  AMERICAN   ELEMENTARY   LAW. 

standing  the  slight  difference  in  time,  can  fairly  be  held  to  be  a 
a  part  of  the  transaction,  that  is  if  the  statement  preceded  and 
was  the  then  present  cause  of  the  act  or  acts  under  consideration, 
or  if  it  succeeded  and  is  the  immediate  and  unstudied  outgrowth 
of  such  act  or  acts,  it  should  be  admitted ;  but  if  there  was  time 
and  opportunity  for  second  thought  it  should  be  rejected  as  hear- 
say. 

Dying  Declarations. — Closely  related  to  the  rules  governing 
res  gestc?  are  those  regulating  the  admission  of  dying  declara- 
tions. Dying  declarations  are  admissible  as  testimony  only  in 
those  cases  in  which  the  cause  of  the  death  of  a  human  being  is 
in  issue  in  a  criminal  case.  As  the  fact  of  death  is  directly  in- 
volved, statements  made  by  the  party  dying  relating  to  the  cause 
of  the  death,  are  in  some  regards  analogous  to  the  statements  we 
have  considered  in  the  preceding  paragraph  as  res  gestce.  But 
the  two  are  by  no  means  identical.  Res  gestae  includes  statements 
or  explanations  made  by  any  one  at  the  time  the  transaction  oc- 
curred. Statements  which  may  be  admitted  as  dying  declara- 
tions are  limited  strictly  to  those  made  by  the  dying  person,  and 
even  these  must  be  shown  to  have  been  made  voluntarily,  with  a 
consciousness  of  impending  death  and  while  he  is  in  possession 
of  his  mental  faculties.  When  these  facts  concur  testimony  will 
be  received  to  prove  the  statements  of  the  dying  party.  If  the 
act  of  the  defendant  in  a  criminal  case  causing  the  death,  and  the 
death  occur  almost  at  the  same  time,  the  dying  declarations  might 
well  be  regarded  as  res  gestce.  If  any  considerable  time  elapses 
after  the  injury  before  the  death,  the  declarations  are  purely 
hearsay. 

Statements  made  against  Interest. — Under  this  head  we  will 
consider  both  admissions  and  confessions.  The  legal  distinction 
between  these  two  is  that  admission  is  used  to  indicate  statements 
made  against  one 's  interest  which  affect  his  rights  in  a  civil  suit, 
while  confession  indicates  such  statements  used  in  criminal  cases. 

The  principle  upon  which  such  statements  are  received  in  evi- 
dence in  civil  and  criminal  cases  is  the  same,  though  out  of  its  ten- 
derness for  the  life  and  liberty  of  the  individual  the  law  is,  in 
some  respects,  more  guarded  in  receiving  confessions  than  ad- 
missions. 

When  admissions  or  confessions  are  made  solemnly  in  the 


EVIDENCE.  497 

progress  of  a  trial,  they  are  more  in  the  nature  of  substitutes  for 
evidence  than  of  evidence  itself.  A  plea  of  guilty  in  a  criminal 
case  properly  entered  is  a  damaging  confession  which  relieves 
the  State  from  the  necessity  of  introducing  full  testimony,  though 
by  statute  in  some  States  evidence  must  still  be  introduced  to 
enable  the  jury  or  the  judge  to  act  intelligently  in  fixing  the 
amount  of  punishment.  An  admission  in  the  pleadings  of  a  party 
to  a  civil  suit,  or  a  statement  in  the  progress  of  the  trial  made  in 
open  court,  that  certain  alleged  facts  are  true  and  need  not  be 
proved  is  rather  a  Avaiver  of  the  necessity  of  proving  the  facts 
than  evidence  of  them. 

Unless  the  admission  or  confession  is  made  in  open  court  or  is 
contained  in  the  pleadings  of  the  parties  the  testimony  offered 
regarding  it  is  necessarily  hearsay.  It  always  consists  in  the 
repetition  of  something  said  by  a  party  to  the  suit  at  some  pre- 
vious time,  for  the  purpose  of  proving  the  truth  of  the  matter 
contained  in  the  statement.  Receiving  of  such  statements  in 
evidence,  therefore,  is  an  exception  to  the  general  rule  excluding 
hearsay.  This  exception  is  based  on  the  fact  that  men  are  care- 
ful regarding  their  own  interests  and  rarely  make  statements 
hurtful  to  themselves  unless  such  statements  are  true. 

The  effect  of  admissions  solemnly  made  in  a  civil  suit  is  to  bind 
the  party  absolutely  on  the  point  admitted.  Care,  however,  must 
be  observed  to  ascertain  the  nature  and  extent  of  the  admission. 
Sometimes  it  will  bind  the  party  only  for  the  trial  during  which 
it  is  made  and  during  appeals  from  the  result.  In  such  case,  if 
there  is  another  trial,  the  party  may  relieve  himself  from  the  ad- 
mission. Again,  if  the  party  admits  that  a  certain  witness  would 
testify  to  a  certain  matter  as  a  fact,  this  is  very  different  from 
an  admission  that  the  testimony  of  the  witness  is  true.  Under 
such  conditions  the  party  making  the  admission  must  argue  his 
case  just  as  though  the  named  witness  had  been  present  and  tes- 
tified as  stated  in  the  admission,  but  he  would  still  be  free  to  at- 
tack the  credibility  of  the  witness  and  to  dispute  the  truth  of  the 
statement  by  any  legitimate  means.  If,  however,  he  admits  that 
the  statement  is  true  he  is  cut  off  from  controverting  the  state- 
ment. 

The  effect  of  confessions  of  guilt  in  a  criminal  case  also  de- 
pends on  the  manner  and  form  in  which  they  are  made.  If  the 
32 


4'J8  AMERICAN   ELEMENTARY   LAW. 

confession  take  the  form  of  a  plea  of  guilty  entered  in  open  court 
it  is  practically  conclusive  as  to  the  fact  of  guilt,  though  testi- 
mony is  often  required  in  those  cases  in  which  the  judge  or  jury 
are  allowed  choice  and  discretion  in  fixing  the  penalty.  "Where  a 
confession  is  claimed  to  have  been  made  out  of  court  the  distinc- 
tion is  recognized  between  statements  made  before  arrest  and  those 
made  while  in  custody  of  the  law.  Many  safeguards  are  thrown 
around  the  reception  of  the  latter  in  evidence  which  are  not  re- 
quired as  to  the  former.  These  are  largely  statutory  and  differ 
in  the  different  States. 

The  Relation  of  the  Facts  to  the  Matters  in  Controversy. 

No  testimony  can  be  received  unless  it  be  relevant  to  the  issues 
joined  between  the  parties. 

Testimony  is  relevant  when  it  reasonably  tends  to  prove  the 
truth  or  falsity  of  the  issues  under  investigation.  All  relevant 
testimony  is  admissible  if  offered  in  conformity  with  the  rules 
governing  the  production  of  evidence,  unless  its  introduction  be 
forbidden  by  some  positive  rule.  There  are  a  few  such  prohibi- 
tory rules,  based  mostly,  if  not  exclusively,  on  considerations  of 
public  policy. 

Mr.  Greenleaf 's  statement  of  the  general  rule  on  this  subject  is: 
' '  Evidence  must  correspond  with  the  allegations,  and  be  confined 
to  the  point  in  issue. ' '  It  is  frequently  announced  in  these  words : 
The  allegata  and  probata  must  correspond. 

The  question  again  arises :  What  circumstances  can  reasonably 
aid  the  court  in  its  search  for  the  truth  involved  in  the  case  ?  The 
answer  is:  Such  circumstances  as  are  so  connected  with  one  or 
more  of  the  issues  in  the  case,  or  its  legally  related  facts,  as  to  be 
reasonably  calculated  to  have  one  or  more  of  the  following  effects 
on  the  mind  of  the  jury  i 

(1)  To  establish  a  rational  belief  in  the  truth  of  some  matter 
alleged  in  the  pleading. 

(2)  To  strengthen  such  belief,  if  it  be  already  somewhat  sup- 
ported by  presumption  or  evidence. 

(3)  To  prevent  such  belief. 

(4)  To  weaken  or  destroy  such  belief,  if  it  exists  either  by  pre- 
sumption or  from  evidence. 

The  next  question  is :  "What  are  the  issues  in  any  case  ?    In  this 


EVIDENCE.  499 

connection,  they  may  be  defined  as  all  matters  of  fact  affirmed  on 
the  one  side  and  denied  on  the  other. 

The  next  question  is :  Must  the  testimony  relate  to  all  the  issues, 
or  may  it  relate  only  to  all  facts  in  one  issue,  or  to  one  fact  only  of 
one  issue,  and  still  be  relevant?  The  answer  is:  If  it  have  the 
proper  connection  with  any  fact  directly  involved  in  any  one 
issue,  it  is  relevant. 

The  next  question  is :  Are  there  any  facts,  not  directly  involved 
in  any  of  the  issues  in  a  case,  but  yet  which  the  law  regards  as  so 
related  to  such  facts  as  to  make  the  testimony  as  to  such  related 
facts  relevant?     The  answer  is:  Yes. 

There  are  numerous  instances  in  which  such  facts  are  admitted. 
These  are  usually,  if  not  always,  instances  in  which  the  offered 
facts  tend  directly  to  aid  in  weighing  and  valuing  the  testimony 
offered  in  regard  to  the  matters  directly  in  issue.  They  may  be 
classified  as  follows: 

(1)  Facts  which  tend  to  show  the  meaning  of  words  or  expres- 
sions used  in  evidence  or  by  witnesses,  as  by  showing  that  a  re- 
mark attributed  to  one  of  the  parties  was  spoken  in  jest,  or  that 
the  party  was  in  the  habit  of  using  the  words  in  question  in  an 
unusual  sense,  etc. 

(2)  General  facts  which  go  to  show  the  character  of  the  party 
in  respect  to  the  matter  under  investigation. 

(3)  Facts  which  go  to  show  the  capacity  or  opportunity  of  a 
party  to  the  suit  as  to  the  particular  matter  under  investigation. 

(4)  Facts  which  are  concomitant  with,  and  explanatory  of,  a 
fact  directly  in  issue  or  explanatory  of  some  fact  already  received 
in  evidence  for  the  purpose  of  directly  supporting  the  facts  di- 
rectly in  issue. 

(5)  General  facts  as  to  the  reputation  of  a  witness  for  truth 
and  veracity  in  his  own  community,  but  no  particular  instances 
of  untruth  nor  individual  opinions  can  be  received. 

(6)  Facts  which  go  to  show  the  capacity  or  opportunity  of  the 
witness  as  to  the  matters  testified  to  by  him. 

(7)  Particular  facts  which  go  to  show  the  attitude  of  the  wit- 
ness toward  the  case  or  the  parties,  such  as  interest,  friendship, 
ill  will,  inducements  offered  by  or  conduct  of  parties,  and  in 
short,  all  facts  which  go  to  show  bias  in  reception  of  impression, 
motive  or  inducement  to  color  or  misrepresent  facts. 


500  AMERICAN   ELEMENTARY   LAW. 

There  is  this  difference  to  be  observed.  Those  facts  which  re- 
late directly  to  matters  directy  in  issue  may  always  be  proved,  if 
offered  in  conformity  to  rules  as  to  the  production  of  testimony; 
but  facts  which  relate  indirectly  to  matters  directly  in  issue,  or 
which  relate  only  to  facts  which  are  indirectly  connected  with  the 
issues,  are  frequently  rejected,  from  considerations  of  public 
policy. 

Thus,  if  one  were  indicted  for  perjury,  all  direct  evidence  as  to 
the  offense  would  be  received.  But  to  show  that  he  had  previously 
been  convicted  of  a  similar  offense  would  be  inadmissible,  although 
all  would  recognize  that  this  would  have  a  decided  influence  on  the 
mind  of  the  ordinary  man  in  producing  a  belief  of  his  guilt.  Such 
proof,  though  logically  relevant,  is  inadmissible,  because  it  might 
result  in  injustice  to  the  defendant  by  the  introduction  of  evi- 
dence he  was  not  prepared  to  rebut,  and  because  it  would  tend 
to  multiply  issues  and  unduly  protract  the  litigation.  Again, 
whenever  a  witness  is  introduced,  his  credibility  at  once  becomes 
a  material  question  in  the  case.  Here  the  law  permits  inquiry  as 
to  his  general  reputation  for  truth  in  the  neighborhood  in  which 
he  lives,  for  this  is  a  matter  on  which  every  one  is  supposed  to  be 
able  always  to  defend  himself;  but  particular  instances  in  which 
he  has  deceived,  or  even  in  which  he  was  supposed  to  have  sworn 
falsely,  and  the  opinions  of  particular  individuals  as  to  his  credi- 
bility, are  excluded,  not  because  they  would  not  probably  throw 
light  on  his  character,  but  because  of  the  undue  advantage  which 
might  thus  be  taken,  and  the  numerous  issues  which  would  thus 
be  raised. 

Functions  of  the  Judge  and  Jury  as  to  Evidence. 

In  Common  Law  courts  the  judge  decides  all  questions  of  law 
and  such  questions  of  fact  as  arise  incidentally  in  the  trial  of  the 
case.  The  issues  of  fact  joined  by  the  parties  in  their  pleadings 
are  decided  by  the  jury.  In  these  courts  juries  are  empaneled 
as  a  matter  of  course  unless  expressly  waived  by  the  parties.  It 
is  permitted,  however,  even  in  these  courts  for  the  parties  by  the 
consent  of  the  judge  to  dispense  with  a  jury  and  submit  all  mat- 
ters of  fact"  as  well  as  of  law  to  the  judge.  These  are  still  the 
rules  in  the  Federal  Courts.  In  many  of  the  States  there  are 
statutes  which  dispense  with  juries  even  in  law  cases  unless  one 


EVIDENCE.  501 

or  the  other  of  the  parties  shall  demand  a  jury  trial  in  conformity 
with  the  local  law. 

In  courts  of  chancery  no  jury  was  ever  impaneled,  but  ques- 
tions of  fact  were  decided  by  the  chancellor.  If,  in  some  particu- 
lar case,  the  chancellor  desired  to  do  so,  he  could  certify  to  a  Com- 
mon Law  court  designated  issues  of  fact  involved  in  a  case  pend- 
ing before  him  and  request  that  they  be  passed  on  by  a  jury  in 
the  Common  Law  court,  and  that  the  verdict  found  by  the  jury 
be  certified  to  him  by  the  Common  Law  court.  Even  in  such 
cases  the  verdict  was  not  conclusive  upon  the  chancellor  but  only 
advisory.  He  could  accept  or  reject  the  conclusion  of  the  jury 
as  his  judgment  and  conscience  dictated.  These  rules  also  still 
obtain  in  the  Federal  courts.  In  many  of  the  States  the  law  and 
equity  jurisdictions  have  been  blended  and  the  same  rules  govern 
in  the  trial  of  law  and  equity  causes. 

In  the  trials  in  cases  in  which  juries  are  impaneled  it  is  the 
province  of  the  judge  to  pass  upon  the  admissibility  of  evidence, 
that  is  to  say,  whether  any  proposed  testimony  can  lawfully  be 
received  and  submitted  to  the  jury.  It  is  the  province  of  the  jury 
ordinarily  to  determine  the  credibility  of  the  witnesses  and  the 
weight  to  be  given  to  the  testimony  received. 

As  no  fact  is  admissible  in  evidence  unless  it  is  relevant  and  as 
relevancy  is  that  quality  by  reason  of  which  a  fact  tends  to  prove 
or  disprove  some  issue  in  a  case,  it  is  clear  that  the  judge  in  de- 
termining whether  or  not  a  proposed  fact  is  relevant  must  con- 
sider it  in  connection  with  the  issues  and  other  evidence  in  the 
case.  This  necessarily  involves  whether  or  not  the  testimony  is 
entitled  to  have  any  weight  in  the  case.  The  weight  of  evidence 
is  its  probative  force.  If  a  fact  offered  in  evidence  has  no  pro- 
bative force  it  is  not  relevant  and  should  not  be  received.  If  it 
has  probative  force  and  is  offered  in  conformity  with  the  rules 
governing  the  production  of  testimony  it  should  be  received. 

The  respective  duties  of  the  judge  and  jury  with  regard  to  the 
probative  force  of  testimony  may  be  stated  thus :  it  is  the  duty  of 
the  judge  to  determine  whether  or  not  the  fact  offered  in  evidence 
has  any  probative  force  whatever,  that  is,  any  relevancy  to  the 
issues  to  be  decided ;  it  is  the  duty  of  the  jury,  after  the  judge  has 
admitted  the  testimony,  to  determine  how  much  probative  force 
the  particular  fact  should  have  in  determining  the  issues  of  fact 


502  AMERICAN   ELEMENTARY   LAW. 

in  the  case.  To  state  it  differently :  the  judge  determines  whether 
or  not  a  proposed  fact  is  evidence,  the  jury  determines  what 
weight  the  fact  shall  have  after  the  judge  has  declared  that  it  is 
evidence  in  the  case. 

The  rule  above  stated  that  the  jury  are  to  judge  of  the  weight 
of  evidence  is  a  very  general  one,  though  not  universal  in  its  ap- 
plication. The  exception  that  the  judge  must  construe  and  de- 
clare the  effect  of  written  instruments  is  as  well  settled  as  the 
rule  itself.  There  are  certain  legal  presumptions  existing  at 
Common  Law  or  established  by  statutes  which  it  is  the  duty  of 
the  judge  to  announce  to  the  jury,  giving  to  each  presumption 
such  weight  as  it  is  entitled  to  by  law.  Notwithstanding  these 
exceptions,  the  general  rule  is  that  the  weight  to  be  given  to  tes- 
timony is  a  matter  for  the  jury. 

The  credibility  of  the  witnesses  is  always  a  matter  for  the  jury. 
The  competency  of  the  witness,  that  is,  whether  he  should  be  per- 
mitted to  testify,  is  a  matter  for  the  judge,  but  the  judge  having 
decided  that  and  having  permitted  the  witness  to  testify  it  is  the 
province  of  the  jury  to  say  to  what  extent  he  is  to  be  believed. 

Credibility  of  Witnesses. — The  first  element  in  the  value  and 
weight  of  testimony  is  the  credibility  of  the  witness  from  whom 
the  evidence  comes.  In  this  credibility  the  following  are  in- 
cluded : 

(1)  The  moral  character  of  the  witness.  This  involves  hia 
desire  and  purpose  to  tell  the  truth  and  his  courage  to  carry  out 
such  purpose. 

(2)  The  mental  condition  or  capacity  of  the  witness;  first,  to 
receive  correct  impressions  while  the  matter  to  which  the  testi- 
mony relates  is  taking  place,  second,  to  retain  such  impressions 
unchanged,  and  third,  to  correctly  transmit  such  impressions. 

(3)  The  opportunity  of  the  witness  to  exercise  these  faculties 
in  the  several  ways  indicated  above,  and 

(4)  The  attitude  of  the  witness,  or  his  relation  to  the  subject 
matter  of  which  he  testifies  or  the  parties  affected  thereby.  That 
is,  the  personal  interest  of  the  witness  in  the  matter  itself  or  any 
one  or  more  of  the  parties  to  it,  or  his  prejudice  against  such  par- 
ties, etc. ;  including  herein  all  those  matters  which  come  under  the 
general  designation  of  motive. 

Weight  of  Evidence. — "What  constitutes  the  weight  of  evidence 
is  so  important  as  to  justify  a  somewhat  detailed  treatment. 


EVIDENCE.  503 

There  are  five  elements  which  enter  into  the  weight  of  testi- 
mony, four  of  these  relate  to  the  statement  that  is  being  consid- 
ered. The  fifth  to  the  witness  testifying.  The  latter  is  in  reality 
the  credibility  of  the  witness  and  has  been  considered  under  that 
head. 

The  other  four  elements  are: 

(1)  The  meaning  of  the  statement. 

(2)  The  probability  of  the  statement  considered  within  itself. 

(3)  The  consistency  of  the  statement  with  ascertained  concom- 
itant facts. 

(4)  The  relevancy  of  the  statement. 

The  first  inquiry  in  weighing  testimony  is,  what  does  the  state- 
ment mean?  That  is,  what  fact  does  it  purport  to  represent  or 
contain.  In  cases  in  which  the  evidence  offered  is  documentary, 
that  is,  consists  of  written  instruments,  its  meaning  or  import  is 
a  question  to  be  determined  by  the  court;  unless  there  be  in  the 
paper  some  latent  ambiguity  which  may  be  explained  by  resort 
to  parol  testimony.  In  such  case  the  legal  effect  and  meaning  of 
such  portions  of  the  instrument  as  are  unambiguous  are  for  the 
court,  and  the  determination  of  the  facts  evidenced  by  the  parol 
testimony  is  for  the  jury.  But  even  in  such  cases  the  legal  effect 
of  the  instrument  as  applied  to  the  facts  as  found  by  the  jury  is 
in  most  instances  still  a  question  for  the  court.  To  illustrate :  if 
the  written  instrument  be  entirely  plain  or  even  of  doubtful 
meaning  but  has  no  latent  ambiguities  in  it  the  court  must  in- 
struct the  jury  as  to  the  legal  effect  and  meaning  of  the  paper. 
If  the  instrument  be  a  conveyance  of  land,  and  the  subject  matter 
of  the  conveyance  be  general,  equally  applicable  to  two  tracts, 
parol  testimony  would  be  admissible  to  determine  which  of  the 
two  tracts  was  in  fact  in  the  minds  of  the  parties  at  the  time  the 
instrument  was  executed.  In  such  a  case  the  court  would  receive 
the  parol  testimony  and  leave  to  the  jury  the  question  as  to  which 
of  the  two  tracts  the  contract  or  instrument  applied,  but  would 
further  instruct  the  jury  as  to  the  legal  effect  of  the  contract  as 
applied  to  the  subject  ascertained  by  them.  This  doctrine  is 
usually  embraced  in  the  statement  that:  "The  legal  effect  of  a 
written  instrument  is  to  be  determined  by  the  court." 

The  meaning  of  parol  testimony  is  always  for  the  jury,  and 
each  statement  must  be  determined  by  the  jury  trying  the  case 


504  AMERICAN   ELEMENTARY   LAW. 

according  to  their  judgment  as  to  what  idea  the  witness  in  fact 
intended  to  convey. 

Second.  The  probability  of  the  statement  consists  in  its  cor- 
respondence with  the  present  belief  of  the  party  considering  it. 
This  belief  is  always  largely  based  upon  experience. 

As  there  are  no  two  persons  who  have  beliefs  or  opinions  ab- 
solutely identical  it  necessarily  follows  that  no  statement  will 
have  just  the  same  degree  of  probability  to  any  two  persons,  and 
as  in  many  instances  the  beliefs  and  opinions  of  individuals  differ 
very  greatly  it  follows  that  the  degree  of  probability  of  any  state- 
ment, as  determined  by  such  persons,  would  also  differ  very 
widely.  Hence  it  is  that  probability  is  a  very  variable  and  un- 
certain quality,  impossible  of  any  legal  ascertainment  or  measure. 
Each  statement  being  left  to  and  weighed  by  the  particular  jury 
according  to  their  conception  of  the  matter. 

Third.  The  third  element  in  value  of  testimony  is  its  corre- 
spondence with  particular  facts  as  ascertained  in  the  case  on  trial, 
and  which  were  concomitant  with  the  matter  contained  in  the 
statement  under  investigation.  This  must  not  be  confounded 
with  probability. 

To  illustrate:  If  the  first  witness  in  a  case  should  begin  his 
testimony  by  saying  that  "There  was  a  severe  snow  storm  in  the 
city  of  New  Orleans  on  the  15th  of  July,"  such  statement  would 
not  readily  be  accepted  as  true.  The  effect  produced  on  the  minds 
by  the  testimony  in  that  case  is  against  the  preconceived  opinion 
or  belief  that  it  is  not  at  all  likely  to  snow  there  in  that  season 
of  the  year.  This  statement  would  be  improbable.  If,  however, 
the  witness  should  begin  by  saying  that  on  the  15th  of  July  it 
was  very  warm  in  New  Orleans,  we  would  recognize  the  likelihood 
of  the  statement  for  the  same  reason ;  common  experience  teach- 
ing us  that  such  would  probably  and  almost  certainly  be  the  case. 

On  the  other  hand,  if  a  witness,  of  whom  we  knew  nothing, 
should  swear  that  he  saw  A  shoot  B  at  some  designated  place  on 
July  15,  1910,  and  both  A  and  B  were  unknown  to  us,  here  there 
is  nothing  inherently  improbable  in  the  statement.  There  is  noth- 
ing in  it,  considered  by  itself,  either  corresponding  with  or  con- 
trary to  our  personal  opinions,  for  we  have  none  on  this  subject. 
If  afterward  during  the  progress  of  the  trial  several  witnesses, 
whom  we  knew  and  believed  to  be  truthful,  should  swear  that 


EVIDENCE.  505 

they  knew  both  A  and  B,  and  that  at  the  very  time  the  first  wit- 
ness says  A  shot  B  in  the  place  named,  A  was  with  these  witnesses 
at  a  different  place  ten  miles  from  there,  these  statements  as  to 
the  concomitant  facts  being  absolutely  inconsistent  with  the  state- 
ment of  the  first  witness,  if  we  believe  the  latter  statements 
the  testimony  of  the  first  witness  must  be  rejected ;  although  con- 
sidered by  itself  it  could  not  be  regarded  as  improbable. 

If,  however,  these  latter  witnesses  had  said  that  they  were  near 
the  place  of  the  alleged  shooting  and  heard  a  pistol  shot,  and  saw 
A  run  rapidly  oft,  and  found  B  lying  on  the  ground  in  a  dying 
condition  from  a  gunshot  wound, — these  statements  would  sustain 
the  first  witness  or  strongly  corroborate  his  testimony,  and  taken 
in  connection  with  it  would  establish  the  fact  that  B  was  shot 
by  A. 

Fourth.  The  fourth  element  in  the  value  and  weight  of  testi- 
mony consists  in  its  connection  with  facts  in  issue,  or  its  legally 
related  facts;  in  other  words,  in  its  relevancy.  This  question  is 
primarily  passed  upon  by  the  court  in  the  admission  of  testimony. 
That  is,  to  be  admissible  evidence  must  be  relevant  to  some  de- 
gree, but  the  extent  to  which  the  received  testimony  tends  to  es- 
tablish or  strengthen,  or  to  weaken  or  prevent  a  belief  in  the 
truth  of  matters  under  investigation,  is  ultimately  left  to  the 
jury  without  any  suggestion  from  the  court,  except  in  those  in- 
stances in  which  the  law  has  undertaken  to  attach  certain  weight 
to  the  testimony.  This  matter  has  already  been  considered  at 
length. 
When  is  the  Proof  Sufficient? 

As  stated  under  first  and  second  rules,  he  who  is  dissatisfied 
must  take  the  initiative  in  introducing  evidence,  and  must  con- 
tinue until  he  has  established  the  substance  of  his  case  as  set  out 
in  his  pleadings.  The  present  inquiry  is:  How  much  evidence 
must  he  produce  to  constitute  proof?  The  answer  varies  with 
varying  conditions. 

(1)  In  Criminal  Law,  the  defendant  is  presumed  to  be  inno- 
cent until  his  guilt  is  established  beyond  a  reasonable  doubt,  and 
the  State  can  never  safely  close  its  case  until  it  has  testimony 
sufficient  to  do  that.  Besides  this,  there  are  other  special  rules 
of  evidence  in  criminal  matters,  such  as  the  requirement  of  cor- 
roboration of  accomplices,  etc.,  and  some  which  apply  only  in 


506  AMERICAN   ELEMENTARY   LAW. 

particular  cases,  as  the  necessity  of  two  witnesses  in  perjury  and 
treason  whose  testimony  must  coincide  and  other  similar  provi- 
sions. 

(2)  In  civil  suits  issues  of  fact  are  determined  by  the  pre- 
ponderance of  evidence.  This  does  not  mean  numerically  the 
larger  number  of  witnesses,  but  such  testimony  as,  in  the  mind  of 
the  jury,  when  fairly  and  dispassionately  considered,  is  entitled 
to  prevail  over  that  offered  in  opposition  to  it. 

In  both  criminal  and  civil  cases,  there  are  numerous  legal  pre- 
sumptions which,  when  applicable  to  a  case  on  trial,  must  be  con- 
sidered and  given  due  weight.  But  after  all,  testimony  sufficient 
to  establish  in  the  mind  of  a  disinterested  person  a  reasonable  be- 
lief of  any  given  fact,  is  largely  a  question  of  good  judgment. 
In  no  other  one  thing  is  the  difference  between  the  good  and  the 
poor  lawyer  more  apparent  than  in  dealing  with  this  and  its  re- 
lated questions. 


CHAPTER  VII. 

TRIALS. 
How  Conducted. 

The  clerk  of  the  court  is  required  to  keep  a  docket  of  all  cases 
pending  in  his  court.  This  is  a  book  in  which  the  style  of  all  cases 
and  also  the  date  of  the  most  important  actions  which  are  taken 
therein,  and  a  short  memorandum  of  every  ruling  or  decision  by 
the  judge  in  the  case  are  entered.  Cases  are  entered  on  this  docket 
in  the  order  in  which  they  are  instituted.  When  the  session  of 
the  court  begins,  the  judge  takes  this  docket  and  calls  the  cases 
in  the  order  in  which  they  are  entered  there.  As  each  case  is 
called  for  trial,  some  disposition  must  be  made  of  it.  This  may 
be  a  postponement  to  some  later  time  during  that  term  of  the 
court,  or  to  the  next  term,  or  a  trial  of  the  case.  Postponements 
are  not  made,  except  for  good  cause.  A  postponement  to  the  next 
term  is  called  a  continuance.  When  the  case  is  called  for  trial, 
all  unsettled  motions  and  questions  of  law  arising  on  the  plead- 
ings are  presented  to  the  judge,  and  he  decides  them,  and  the 
matters  of  fact  to  be  tried  are  thus  definitely  ascertained. 

When  the  trial  is  ready  to  begin,  if  there  is  to  be  a  jury,  it  is 
selected  and  sworn  to  try  the  case.  They  then  determine  all  ques- 
tions of  fact  involving  the  merits  of  the  case.  If  no  jury  is  to  sit, 
the  judge  determines  both  the  law  and  the  facts.  After  the  jury 
is  impaneled,  or  immediately  on  announcing  ready  for  trial,  if 
there  be  no  jury,  the  pleadings,  as  settled  by  the  rulings  on  the 
demurrers,  are  read,  and  the  testimony  is  introduced.  After  the 
close  of  the  testimony,  the  legal  propositions  are  discussed  to  the 
judge  and  the  facts  argued  before  him,  or  the  jury,  as  the  case 
may  be.  If  there  be  no  jury,  the  judge  announces  his  decision 
then,  or  takes  the  case  under  advisement  and  announces  it  later, 
and  judgment  is  entered  in  accordance  therewith. 

If  there  be  a  jury,  when  the  argument  before  them  is  concluded 
the  judge  delivers  his  charge.  This  is  a  clear  and  accurate  state- 
ment by  the  judge  to  the  jury  of  all  the  rules  of  law  applicable 
to  the  facts  in  evidence,  by  which  they  are  to  be  governed  in  de- 


508  AMERICAN   ELEMENTABY  LAW. 

liberating  on  the  case  and  making  up  their  decision.  It  should  be 
fair  and  unbiased,  giving  the  very  law  of  the  case  being  tried — 
no  more,  and  no  less. 

After  receiving  the  charge,  the  jury  retire  in  charge  of  an  offi- 
cer, and  are  kept  together  and  from  association  with  other  per- 
sons until  they  arrive  at  a  unanimous  decision  called  a  verdict. 
This  is  then  reduced  to  writing,  signed  by  one  of  their  number 
styled  the  foreman,  and  returned  into  open  court,  where  it  is  re- 
ceived by  the  judge  and  inspected  and,  if  in  due  form,  is  read  by 
the  clerk.  If  informal,  the  attention  of  the  jury  is  called  to  the 
defect,  and  it  is  cured,  and  then  the  verdict  is  received.  It  is 
filed  and  is  entered  of  record.  The  jury  is  then  discharged  from 
the  case,  and  the  attorney  of  the  successful  party  prepares  a  for- 
mal judgment,  which  is  entered  of  record. 

Judgment. 

The  judgment  is  the  final  result  of  the  trial.  It  is  the  culmina- 
tion of  the  whole  proceeding,  and  authoritatively  establishes  and 
declares  the  legal  rights  and  liabilities  of  the  respective  parties  to 
the  suit  in  the  matters  of  controversy  and  awards  the  proper 
remedy.  It  is  binding  on  them,  and  all  persons  claiming  under 
them,  and  cannot  be  disputed  or  avoided  by  any  of  them  except 
by  a  direct  proceeding  for  revision. 

Revision  of  Judgments. — As  nothing  human  is  perfect,  errors 
frequently  occur  in  the  progress  of  trials,  and  unjust  and  unlaw- 
ful results  follow.  Recognizing  this,  the  law  makes  provision  for 
correcting  such  errors.  These  are  of  two  general  kinds:  (1)  re- 
vision in  the  court  in  which  the  trial  was  had;  (2)  revision  by 
some  higher  court  with  appellate  jurisdiction. 

The  first  of  these  is  usually  accomplished  by  motion  in  the  trial 
court.  These  motions  are  for  a  new  trial,  or  in  arrest  of  judg- 
ment. The  technical  differences  between  them  we  need  not  no- 
tice. In  preparing  the  motion,  the  attorney  for  the  unsuccessful 
party  reviews  in  his  own  mind  the  entire  trial  and  carefully  con- 
siders every  ruling  and  decision  adverse  to  his  client,  and,  unless 
the  judge  was  clearly  right  in  each,  he  selects  that  as  a  reason 
for  a  new  trial.  All  these  reasons  he  incorporates  into  a  written 
motion  and  files  it,  and  presents  it  to  the  judge.  If  he  succeeds 
in  convincing  the  judge  that  error  has  been  committed  to  his  in- 
jury, the  new  trial  is  granted.    If  he  does  not,  it  is  denied. 


TRIALS.  509 

If  the  new  trial  be  granted,  the  ease  stays  on  the  docket  for  an- 
other trial,  when  it  is  again  reached  in  due  course. 

If  the  motion  be  overruled,  the  losing  party  can  take  an  appeal 
to  some  higher  court,  provided  for  that  purpose.  To  do  so  he 
gives  notice  of  such  appeal  in  open  court,  and  files  an  appeal 
bond,  or  pauper's  oath  in  lieu  of  bond,  if  he  can  not  give  it,  and 
then  files  another  paper  called  an  assignment  of  errors.  In  this 
he  sets  out  in  detail,  in  distinct  propositions,  the  various  rulings 
and  decisions  of  which  he  complains. 

As  no  official  record  is  kept  during  the  trial  of  the  evidence  in- 
troduced and  of  many  of  the  rulings  of  the  court  made  in  the 
progress  of  the  trial,  a  statement  of  facts  and  various  bills  of  ex- 
ceptions presenting  these  different  matters  are  made  out,  as  the 
law  requires,  and,  on  being  approved  by  the  judge,  become  part 
of  the  record. 

The  clerk  then  makes  out  a  complete  transcript  of  the  whole 
record,  and  this  is  filed  in  the  appellate  court,  and  the  case  there 
is  tried  on  that. 

If  no  appeal  be  taken,  a  writ  of  error  may  be  sued  out  within  a 
limited  time.  This  does  not  differ  materially  from  an  appeal,  ex- 
cept in  the  manner  of  informing  the  adverse  party  of  the  fact 
that  a  revision  of  the  judgment  is  being  sought. 

When  the  case  reaches  the  appellate  court  it  is  entered  on  the 
docket  there  and  tried  under  the  rules  of  practice  applicable 
there.  This  court  makes  such  disposition  of  the  case  as  the  law 
requires.  If  there  has  been  no  error  committed,  or  if  error,  if  it 
be  in  favor  of  the  appealing  party,  or  if  against  him  is  so  slight 
as  to  have  had  no  influence  on  the  result  of  the  case,  the  judg- 
ment is  affirmed.  If  there  is  material  error  against  the  appellant, 
the  judgment  will  be  set  aside  or,  as  it  is  technically  called,  re- 
versed. If  all  the  facts  have  been  developed  and  justice  may  be 
done  in  that  way,  judgment  will  be  rendered  in  behalf  of  the  ap- 
pellant. If  this  can  not  be  done,  and  the  error  can  be  corrected 
on  another  trial,  the  case  will  be  remanded  to  the  lower  court  to 
be  tried  in  accordance  with  the  decision  of  the  appellate  court. 
If  tbe  error  can  not  be  cured,  the  case  will  be  dismissed. 

In  addition  to  the  methods  of  revising  judgments  just  discussed 
the  court  in  which  a  judgment  was  rendered  in  cases  of  gross 
injustice,  not  attributable  to  the  fault  of  the  injured  party,  upon 


510  AMERICAN   ELEMENTARY   LAW. 

proper  application  by  him,  made  in  the  time  and  manner  pro- 
vided by  law,  may  set  aside  such  judgment  and  open  up  the  ques- 
tion for  rehearing.  The  ancient  equity  proceeding  for  this  pur- 
pose was  called  a  Bill  of  Review.  It  is  very  limited  in  its  appli- 
cation and  very  technical  in  the  rules  governing  it.  In  modern 
practice  an  appreciably  broader  and  more  useful  proceeding  has 
been  introduced  known  as  a  Bill  in  the  Nature  of  a  Bill  of  Review. 
Both  these  are  proceedings  brought  in  the  court  in  which  the 
judgment  was  rendered  for  the  purpose  of  setting  the  judgment 
aside  and  obtaining  another  hearing  of  the  case. 

Enforcement  of  Judgments. — Judgments  not  only  determine 
the  rights  and  liabilities  of  the  parties,  but  also  award  the  reme- 
dies to  which  the  successful  party  is  entitled.  So,  when  the  liti- 
gation is  finally  over,  he  can  obtain  the  benefits  of  his  trouble  and 
expense.  Most  frequently  the  unsuccessful  party,  when  he  can 
resist  no  longer,  complies  with  the  requirements  made  upon  him 
by  the  judgment.  But  this  is  not  always  so.  To  meet  these 
latter  cases  the  law  provides  various  methods  of  forcing  obedi- 
ence. This  is  done  by  the  award  of  various  writs  or  process,  usu- 
ally called  executions,  and  placing  these  in  the  hands  of  the 
proper  executive  officer,  who,  in  obedience  thereto,  compels  the 
party  to  do  what  has  been  adjudged  to  be  his  legal  duty. 

The  remedy  awarded  in  each  particular  suit  is  the  one  appro- 
priate to  the  case  and  rights  of  the  party.  If  it  be  to  compel  pay- 
ment of  money,  the  writ  commands  the  officer  to  seize  and  sell 
enough  of  the  property  of  the  debtor  to  pay  the  judgment  and 
the  costs  of  its  execution.  If  it  be  for  the  possession  of  land,  the 
writ  authorizes  the  officer  to  take  the  property  into  his  possession 
and  deliver  it  over  to  the  successful  party,  and  so  on,  through 
the  whole  list  of  remedies.  Courts  of  Equity  direct  their  reme- 
dies largely  against  the  person  of  the  defendant.  Thus,  if  an  in- 
junction be  awarded,  the  party  must  conform  his  conduct  thereto, 
and,  if  he  does  not,  he  is  put  in  jail.  So  in  decree  for  specific 
performance  of  a  contract,  if  the  party  does  not  obey  the  decree, 
he  is  dealt  with  as  for  contempt,  and  made  to  do  so.  The  satis- 
faction of  the  judgment  is,  as  to  that  case,  the  end  of  the  law. 


PART  V. 


APPLICATION  OF  GENERAL  RULES,  TO  CRIMINAL, 
TORT,  AND  CONTRACT  LAW. 


CHAPTER  I. 


CRIMINAL  LAW. 


The  laws  of  the  several  States  are  usually  divided  into  Crim- 
inal and  Civil  Law,  and  this  last  class  again  subdivided  into  Tort 
or  Non-Contract  Law,  and  Contract  Law.  "We  desire,  now,  to 
follow  these  divisions,  and  take  up,  with  a  little  more  of  particu- 
larity, the  principal  rules  and  doctrines  of  each  of  these  three  di- 
visions, and  present  them,  not  in  detail,  but  in  fair  general  out- 
line, showing,  so  far  as  brief  treatment  can  do,  the  application  in 
each  of  the  general  principles  we  have  tried  to  develop  in  the 
preceding  pages. 

First  in  order  comes  Criminal  Law. 

The  public  is  entitled  to  protection  against  the  harmful  conduct 
of  individuals.  This  protection  is  afforded  by  forbidding  certain 
conduct,  providing  penalties  for  violating  these  rules  and  sub- 
jecting persons  guilty  of  such  conduct  to  these  penalties.  What 
conduct  is  harmful  and  shall  be  punished,  is  determined  by  the 
legislative  department  of  the  government,  and  the  determination 
thus  arrived  at,  if  not  contrary  to  some  provision  of  the  Federal 
or  State  Constitution,  is  binding  on  the  judicial  and  executive 
departments.  When  conduct  is  so  denounced  and  penalized,  it 
becomes  criminal,  and  the  law  forbidding  it  and  prescribing  the 
penalty  for  it  is  a  Criminal  Law ;  and  the  aggregate  of  such  laws, 
in  any  State,  is  the  criminal  law  of  that  State.  A  crime  is  an  act 
or  omission  which  is  forbidden  by  law,  for  the  purpose  of  pro- 
tecting the  public,  as  such,  and  for  which  a  punishment  is  affixed. 

When  we  speak  of  the  divisions  of  the  law  into  Civil  and  Crim- 
inal, we  must  not  get  the  idea  that  these  terms  are  so  exclusive, 
the  one  of  the  other,  that  the  same  matter  can  not  fall  within  both 


512  AMERICAN   ELEMENTARY   LAW. 

divisions;  for  the  same  act  or  omission  may  be  both  a  crime  and  a 
civil  wrong,  its  nature  depending  on  the  point  of  view.  If  one 
person  owns  property  and  another  person  steals  it,  or  if  one  per- 
son commits  an  assault  and  battery  upon  another,  and  severely 
injures  him,  in  each  case  the  act  is  a  violation  of  the  good  order 
in  which  the  public  is  interested,  and  also  of  the  private  right  of 
the  individual  involved.  The  Criminal  Law  in  the  first  instance, 
will  punish  the  offender  by  appropriate  remedy  for  the  offense 
against  the  public,  and  the  Civil  Law  will  make  him  responsible 
to  the  owner  of  the  property  stolen  for  its  value.  So,  in  the  sec- 
ond case,  the  public  vindicates  its  right  to  maintain  the  public 
peace,  by  punishing  the  wrong-doer  for  his  crime,  and  also  com- 
pels him  to  make  restitution  to  the  injured  party  for  damage  sus- 
tained. And  so  of  a  large  number  of  acts  and  omissions.  They 
violate  both  the  Criminal  and  Civil  Law,  and  the  wrong-doer  is 
answerable  for  the  violation  of  each. 

The  Common  Law  rules,  as  to  crimes  and  their  punishments, 
are  the  result  of  long  experience  and  much  careful  study.  Their 
details  are  many,  and  it  would  be  profitless  to  attempt  to  go  into 
them.  They  are  the  base  of  the  criminal  laws  of  all  the  States  of 
the  Union,  unless  it  is  Louisiana.  In  some  States  the  Common 
Law  is  still  in  force  in  criminal  matters,  except  as  it  has  been 
modified  by  statutes.  In  others,  the  Common  Law  has  been  su- 
perseded by  a  complete  penal  code,  and  nothing  is  punishable  as  a 
crime  unless  made  so  by  this  code. 

There  are  no  Common  Law  offenses  against  the  Federal  laws. 
So  far  as  crime  is  concerned  there  is  no  Common  Law  enforced 
through  the  Federal  Courts.  This  does  not  mean  that  the  Com- 
mon Law  is  not  looked  to  for  the  purposes  of  construing  Federal 
Criminal  Statutes  and  interpreting  words  and  phrases  occurring 
therein.  This  is  always  done.  But  no  act  or  omission  is  punish- 
able in  the  Federal  Courts  as  a  crime  unless  it  has  been  declared 
such  by  an  act  of  Congress. 

Classification  of  Crimes. 

At  Common  Law  crimes  are  divided  into  treason,  felonies,  and 
misdemeanors. 

Treason,  in  its  broadest  sense,  is  opposition  to  a  government 
to  which  one  owes  allegiance,  manifesting  itself  in  overt  acts. 


CRIMINAL   LAW.  513 

By  the  Constitution  of  the  United  States  it  is  declared  that 
''Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid 
and  comfort. "  A  similar  provision  occurs  in  most,  if  not  all,  of 
the  constitutions  of  the  several  States.  This  gives  the  general 
American  idea  on  this  subject.  If  the  war  is  waged  with  intent 
to  overthrow  the  Federal  government,  or  the  aid  and  comfort  is 
given  to  its  enemies,  it  is  treason  against  the  United  States.  If 
the  opposition  is  to  a  State  government,  it  is  treason  against  the 
State. 

Felony,  at  Common  Law,  is  any  crime  not  treason  punishable 
by  death  or  by  forfeiture  of  estate  or  by  both.  In  the  early  his- 
tory of  the  law,  it  included  a  great  many  offenses  which,  at  this 
time,  are  regarded  as  relatively  trivial. 

The  establishment  of  penitentiaries,  or  State  prisons,  as  dis- 
tinguished from  county  jails,  and  the  substitution  of  confine- 
ment in  the  penitentiary  for  the  death  penalty  in  a  great  number 
of  offenses  has  given  opportunity  for  another  definition  of  felony. 
It  is  now  customary  to  define  a  felony  as  any  act  or  omission 
constituting  a  crime  and  punishable  by  death  or  by  confinement 
in  the  penitentiary,  either  absolutely  or  in  the  alternative.  Under 
this  definition  it  is  not  necessary  that  the  crime  be  absolutely 
punishable  either  by  death  or  sentence  to  the  penitentiary.  If 
the  party  accused  of  the  offense  may  be  put  to  death  or  sent  to  the 
penitentiary,  the  crime  is  a  felony  although  the  court  or  jury 
may  be  authorized  under  the  law  to  impose  only  a  pecuniary  fine 
as  punishment.  A  man  convicted  of  such  an  offense  and  fined 
only  is  a  felon. 

All  smaller  crimes,  that  is,  all  crimes  that  are  punishable  only 
by  fine  or  by  imprisonment  in  the  county  jail,  or  by  both  these, 
or  in  any  other  way  except  by  death  or  confinement  in  the  peni- 
tentiary, are  known  as  misdemeanors.  These  are  not  infrequently 
called  petty  offenses. 

It  is  apparent  that  this  last  class  includes  the  largest  number 
of  offenses  and  those  of  most  frequent  occurrence. 

It  is  important  to  keep  the  distinctions  between  felonies  and 
misdemeanors  clearly  in  mind.  Not  only  are  they  important  in 
Criminal  Law  but  they  enter  largely  into  the  rules  of  Criminal 
33 


514  AMERICAN   ELEMENTARY   LAW. 

Procedure.  The  jurisdiction  of  different  courts  over  offenses  is 
frequently  made  to  depend  on  this  distinction  and  the  methods 
of  prosecution  are  in  many  important  respects  affected  thereby. 
Defining  Crimes  a  Legislative  Function. 

The  determination  of  what  acts  shall  constitute  crime  and  the 
penalties  that  shall  be  affixed  therefor  are  legislative  functions. 
This  function  may  be  exercised  by  the  people  directly  in  framing 
their  constitution,  as  we  have  just  seen  with  regard  to  treason, 
but  ordinarily  it  is  left  with  the  Legislative  Department  of  the 
government  to  determine  these  matters.  In  the  United  States 
Government  this  function  is  discharged  by  Congress,  subject  only 
to  the  limitations  upon  the  power  of  the  Federal  Government  and 
upon  Congress,  inherent  in  the  nature  of  that  government,  as  as- 
certained by  fair  interpretation  of  the  Federal  Constitution.  In 
the  several  States  the  power  is  exercised  by  the  Legislatures  sub- 
ject only  to  the  constitution  and  laws  of  the  United  States  and 
the  constitution  of  the  particular  State. 

It  is  apparent  from  the  foregoing  that  the  acts  or  omissions 
which  may  be  denounced  as  criminal  are  very  many.    Subject  to 
the  limitations  given  above,  any  conduct  which,  in  the  judgment  ' 
of  the  legislative  power,  is  subversive  of  the  general  good  may 
be  declared  to  be  a  crime  and  punishable  as  such.    In  fact,  the 
acts  or  omissions  which  are  made  criminal  in  the  different  juris- 
dictions are  exceedingly  numerous.    From  the  nature  of  our  in- 
stitutions crimes  as  defined  and  punished  by  Congress  are,  to  a 
large  extent,  matters  over  which  the  States  have  no  jurisdiction, 
and  in  this  sense  they  constitute  a  class  to  themselves,  almost 
without  duplication  in  the  laws  of  the  respective  States;  though 
there  are  a  few  matters,  such  as  making  or  passing  counterfeit 
money,  which  may  be  punished  both  by  the  Federal  Government 
and  by  the  States.     On  the  other  hand,  when  we  compare  the 
Criminal  laws  of  the  several  States  we  find  that  the  great  body 
of  the  acts  or  omissions  which  are  denounced  as  criminal  in  one 
State  are  so  denounced  in  others.    The  details  as  to  what  consti- 
tutes the  crime  and  what  punishment  shall  be  affixed  and  the 
method  of  procedure  are  ordinarily  different  in  the  different 
States,  but  the  fundamental  ideas  in  the  Criminal  Law  of  all  the 
States  are,  to  a  large  extent,  the  same.    Human  nature  in  its  de- 
sires and  capacities  and  weaknesses  and  temptations  is  largely 


CRIMINAL   LAW.  515 

the  same  throughout  the  whole  United  States,  and  experience 
everywhere  teaches  practically  the  same  lesson  as  to  what  con- 
duct is  conducive  to,  and  what  is  opposed  to,  the  public  good. 
The  Criminal  Law  in  each  community  is  based  upon  and  grows 
out  of  this  common  experience. 

Mental  Capacity,  Motive,  and  Intent  as  Involved  in  Crime. 

The  purpose  of  Criminal  Law  is  to  protect  the  general  public 
against  the  harmful  conduct  of  the  vicious  and  evil-minded.  It 
never  deals  with  unmanifested  desire  or  motive.  However  evil 
these  may  be,  the  law  takes  no  jurisdiction  over  them  until  they 
are  manifested,  to  some  extent  at  least,  in  overt  acts  or  wrongful 
omissions.  There  must  always  be  an  affirmative  wrong-doing,  or 
a  wrongful  failure  to  do  when  doing  is  a  legal  duty.  So  that 
we  may  say  that  wrongful  conduct,  as  that  term  has  been  defined, 
is  an  essential  element  of  every  crime. 

The  question  necessarily  arises,  Is  the  wrongful  conduct  all 
that  is  essential  ?  The  almost  universal  answer  is.  No.  There  are 
a  few  acts  made  criminal  by  positive  statute  which,  considered  in 
themselves,  are  as  near  devoid  of  moral  quality  as  conduct  may 
be,  which  will  be  dealt  with  as  criminal  and  punished  without  ref- 
erence to  intent.  Some  negligent  omissions,  also,  are  punished 
as  criminal  although  it  may  be  clear  that  the  act  resulted  from 
mere  inadvertence.  Tn  the  last  of  these  classes  of  cases,  the  law 
very  justly  charges  the  party  with  his  inadvertent  carelessness 
and  in  effect  says  that  inadvertence,  under  the  circumstances 
specified  in  the  law,  is,  in  itself,  a  culpable  mental  attitude. 

It  is  almost  universally  true  that  mental  capacity  and  wrongful 
intent  are  elements  of  crime  both  at  Common  Law  and  under  the 
Federal  and  State  Codes. 

Mental  condition,  upon  which  liability  for  crime  ordinarily 
rests,  is  capacity  to  understand  the  nature  and  consequences  of 
the  particular  act  or  omission  under  investigation.  This  does  not 
mean  that  the  party  must  actually  have  understood  that  his  con- 
duct was  criminal.  Two  of  the  leading  maxims  of  the  law  are 
that  "Everyone  is  presumed  to  know  the  law"  and  that  "Igno- 
rance of  the  law  excuses  no  one. "  So  the  legal  requirement  is  not 
that  the  party  charged  shall  know  the  legal  nature  of  the  act  as 
being  unlawful,  either  as  a  felony  or  a  misdemeanor,  but  that  ho 


516  AMERICAN   ELEMENTARY   LAW. 

have  capacity  to  understand  what  he  is  doing  and  the  moral 
qualities  of  his  conduct  and  its  probable  consequences. 

The  test  is  applied  as  to  the  particular  conduct  under  investi- 
gation. That  is  the  question  to  be  solved:  Did  he,  at  the  time, 
have  the  capacity  to  know  the  nature  of  that  particular  conduct 
and  its  consequences  ?  It  is  true  that  the  investigation  may  take 
a  much  wider  range.  Possibly  one  of  the  most  satisfactory  ways 
of  proving  lack  of  capacity  on  any  particular  point  would  be  to 
prove  general  insanity.  But  it  must  be  remembered  that  such 
proof  is  permitted  for  the  purpose  of  obtaining  a  satisfactory 
answer  to  the  question,  Is  the  prisoner  mentally  capable  as  to 
the  particular  conduct  charged  against  him?  If  he  is,  although 
he  may  be  unsound  on  other  points,  he  is  responsible ;  if  he  is  not, 
though  he  may  be  sound  on  other  points,  he  is  irresponsible. 

Passing  from  mental  capacity  to  matters  of  intent  and  motive 
and  purpose,  we  enter  a  more  difficult  field.  Motive  is  that  which 
actuates;  which  produces  desire,  and  brings  pressure  upon  the 
will  to  give  its  assent  to  a  suggested  course  of  conduct.  Intent 
is  the  act  of  the  will  in  yielding  to,  or  rejecting  these  actuating 
motives  and  the  state  of  mind  thus  induced.  Another  term 
closely  connected  with  both  motive  and  intent  and  sometimes 
used  interchangeably  with  each  is  purpose.  The  better  meaning 
of  this  word  seems  to  be  the  end  sought  to  be  accomplished.  It 
is  true  that  this  is  very  closely  akin  to  motive  inasmuch  as  the 
end  to  be  accomplished  is  often  the  thing  desired.  It  is  also 
closely  related  to  intent  because  the  will  can  scarcely  determine 
on  a  course  of  conduct  except  as  leading  to  and  accomplishing 
some  desired  end. 

It  is  not  surprising  that  terms  standing  for  ideas  so  closely  re- 
lated as  these  three  thoughts  are  should  be  frequently  confused 
and  used  interchangeably.  The  three  ideas  exist  and  are  actual 
facts  involved  in  the  existence  of  almost  every  crime  and  the  stu- 
dent of  law  must  become  familiar  with  them.  "We  will  endeavor 
to  use  the  three  words  in  the  senses  indicated,  that  is,  motive  as 
standing  for  that  which  actuates  and  prompts  the  doing  or  not 
doing  of  a  certain  act;  intent  as  the  act  of  the  mind  and  will  in 
deciding  what  is  to  be  done  and  its  state  or  condition  while  this 
decision  holds;  and  purpose,  as  the  end  sought  to  be  accom- 
plished by  the  conduct. 


CRIMINAL   LAW.  517 

Neither  one  of  these,  nor  any  combination  of  them,  unmani- 
fested  in  conduct  is  within  the  jurisdiction  of  the  law.  Each  of 
them  is  important  in  connection  with  conduct  as  fixing  or  tending 
to  show  its  legal  quality  and  character.  Of  the  three,  intent  is 
probably  of  the  greatest  consequence.  It  is  sometimes  said  that 
intent  is  the  legally  important  inquiry  and  motive  and  purpose 
are  valuable  largely,  if  not  exclusively,  as  evidence  of  intent. 
This  does  not  seem,  however,  to  be  altogether  accurate. 

These  distinctions  and  their  practical  effect  may  be  made 
clearer  by  illustration.  Homicide  is  the  taking  of  the  life  of  one 
human  being  by  act,  agency  or  procurement  of  another.  From 
time  immemorial  homicide  under  some  circumstances  has  been 
justifiable  in  law,  under  others,  excusable,  and  under  others,  a 
very  serious  offense.  Again,  for  centuries  there  have  been  grades 
in  criminal  homicide.  Whether  or  not  the  law  justifies,  excuses, 
or  punishes  any  particular  homicide  depends  on  the  motive,  in- 
tent, and  purpose  of  him  who  commits  it.  An  officer  who  executes 
a  criminal  under  the  command  of  the  law  does  so  intentionally 
and  with  the  purpose  of  taking  his  life,  but  his  act  is  justified. 
The  law  commanded  it  and  the  individual  is  but  the  instrument 
of  sovereignty  in  carrying  out  its  will  We  might  conceive  of  a 
case  in  which  the  executioner  actually  had  ill-will  toward  the 
culprit  and  took  pleasure  in  his  death,  but  so  long  as  he  acts  in 
strict  accord  with  the  mandate  of  the  law,  he  is  guilty  of  no  crime. 

It  is  equally  true  that  from  time  immemorial  the  law  has  rec- 
ognized the  right  of  self-defense  and  within  the  limits  regulating 
that  subject  has  excused  the  man  who  killed  his  neighbor  to  pre- 
vent his  own  life  being  unlawfully  taken.  Here  the  motive  is  the 
man 's  love  of  and  right  in  his  own  life.  He  is  not  actuated  by  a 
desire  to  injure  another  but  by  the  desire  to  prevent  the  other 
from  seriously  injuring  him.  The  intent  is  to  protect  himself, 
even  though  this  may  involve  serious  hurt  to  or  the  death  of  his 
assailant.  The  purpose  to  be  accomplished  is  his  own  protection. 
As  the  motive  and  purpose  are  lawful,  the  yielding  to  the  motive 
and  the  accomplishment  of  the  purpose  are  lawful  and  the  in- 
tent intervening  between  the  two  is  lawful. 

Passing  to  the  grades  of  criminal  homicide,  the  law  recognizes 
the  difference  between  cold-blooded  assassination  and  the  killing 
under  the  impulse  of  some  sudden  passion.    In  both  cases  there  is 


518  AMERICAN   ELEMENTARY   LAW. 

homicide  committed  contrary  to  law.  In  both  cases  there  is  in- 
tent to  kill.  In  the  first  instance,  the  assa&sin  is  actuated  by 
despicable  motives  to  which  his  mind  has  yielded  while  calm  and 
deliberate  and  the  law  gives  color  to  his  act  from  this  motive  and 
declares  it  to  be  murder  in  the  first  degree.  In  the  second  case, 
the  law  neither  justifies  nor  excuses  the  act,  but  recognizes  the 
frailty  of  human  nature  and  finding  that  the  intent  to  kill  was 
formed  rashly  in  the  heat  of  passion,  says  the  homicide  is  less 
reprehensible  than  cold-blooded  murder  and  affixes  to  it  a  less 
penalty.  In  many  of  the  States,  the  Codes  have  gone  even  fur- 
ther in  grading  felonious  homicide  and  take  into  account,  not  only 
the  rashness  and  suddenness  of  the  act,  but  the  nature  of  the 
provocation  and  punish  more  lightly  homicides  induced  by  con- 
duct reasonably  calculated  to  produce,  and  in  fact  producing, 
such  degree  of  excitement  or  passion  as  to  render  a  man  of  ordi- 
nary temperament  incapable  of  self-control.  Here  there  is  the 
intent  to  kill,  but  it  is  induced  by  sudden  passion  provoked  by 
adequate  cause  and  the  law  looks  upon  it  more  leniently  even 
than  it  does  upon  sudden  passion  without  sufficient  provocation. 

We  must  be  careful  to  distinguish  between  the  intent  to  do  an 
act  and  the  intent  with  which  the  act  is  done,  as  this  term  is  very 
frequently  used  in  the  law.  The  last,  the  intent  with  which  the 
act  is  done,  is  much  more  a  matter  of  motive  and  purpose  than  is 
the  intent  to  do.  Consider  the  offense  of  larceny  as  an  example. 
Larceny  is  not  the  taking  of  corporeal  personal  property  belong- 
ing to  another  knowingly  and  purposely,  but  it  is  the  taking  with 
the  purpose  or  motive  of  fraudulently  depriving  the  owner  of 
the  value  of  his  property  and  appropriating  it  to  the  use  or  bene- 
fit of  the  person  taking.  If  a  piece  of  property  belongs  to  A  and  B 
honestly  believes  it  belongs  to  him  and  takes  possession  of  it  under 
this  honest  but  mistaken  belief,  it  is  not  theft.  The  criminal  mo- 
tive, or  as  it  is  usually  expressed,  the  criminal  intent  is  lacking. 
The  taking  is  a  tort  and  A  has  a  civil  remedy  for  it,  but  it  is  not 
a  crime.  If  B  had  known  the  property  belonged  to  A  and  had 
taken  it  to  use  temporarily,  presuming  A's  consent  to  such  use 
from  their  friendly  relations,  this  would  not  be  theft.  The  crim- 
inal motive  is  lacking. 

We  may  therefore  conclude  that  mental  capacity  to  appre- 


CRIMINAL   LAW.  519 

ciate  the  nature  and  consequences  of  one 's  conduct  and  criminal 
motive  and  intent  are  essential  in  almost  all  crime. 

Evidence  of  Intent. — While  the  law  insists  upon  criminal  in- 
tent it  recognizes  the  practical  difficulty  of  searching  a  man's 
heart  and  finding  his  real  motives  and  intentions.  Here,  as  else- 
where, it  meets  this  practical  difficulty  in  a  practical  way  and  de- 
clares that  a  man 's  motive  and  intent  shall  be  judged  by  his  con- 
duct. If,  therefore,  his  conduct  and  the  means  employed  by  him 
are  such  as  would  ordinarily  result  in  the  commission  of  a  crime 
and  the  act  forbidden  is  actually  performed  by  him,  his  intent 
to  commit  the  crime  is  presumed  therefrom.  This  is  but  an  ap- 
plication of  the  familiar  doctrine  that  a  man  is  presumed  to  have 
intended  the  natural  and  probable  consequences  of  his  conduct. 
The  difference  between  Tort  Law  and  Criminal  Law  in. this  re- 
spect seems  to  be,  that  in  the  matter  of  adjusting  the  loss  between 
individuals  and  awarding  compensation  for  damages  done,  the 
Law  of  Torts  makes  this  presumption  conclusive,  whereas,  in 
Criminal  Law,  it  may  be  overcome  by  the  facts. 

As  just  stated,  the  presumption  thus  indulged  is  not  conclusive, 
The  accused,  by  proper  testimony,  may  rebut  its  effect  and  show 
that  no  criminal  intent  existed. 

On  the  other  hand,  the  law  permits  the  prosecuting  officer  to 
prove  such  facts  as  go  to  show  motive,  intent  and  purpose.  Fre- 
quently much  of  the  evidence  in  a  criminal  case  is  directed 
towards  these  mental  conditions.  Very  frequently  the  facts  and 
circumstances  developed  on  the  trial  speak  more  conclusively  as 
to  criminal  intent  than  the  direct  evidence  of  the  accused  him- 
self could  do. 

Ignorance  and  Mistake. — Closely  related  to  the  questions  of 
mental  attitude  and  intent  are  ignorance,  mistake,  duress,  and 
fraud. 

Ignorance  is  absence' of  information ;  mistake  is  misinformation 
or  misconception;  duress  is  coercion  overcoming  the  will;  and 
fraud  is  deception  leading  to  improper  conduct. 

It  is  apparent  that  all  these  differ  from  mental  incapacity  or 
unsoundness.  It  is  also  apparent  that  they  often  enter  into  and 
affect  conduct,  particularly  in  its  mental  aspect. 

It  is  said  that  ignorance  of  the  law  never  excuses  one  criminally. 


520  AMERICAN   ELEMENTARY   LAW. 

This,  of  course,  means  ignorance  of  the  law  with  the  violation  of 
which  the  party  is  accused.  Ignorance  of  law  as  to  one's  rights, 
may  and  frequently  does  enter  into  and  determine  the  legal  qual- 
ity of  his  conduct.  This  is  not  always  true  and  is  never  true  ex- 
cept in  those  cases  where  specific  evil  intent  is  an  element  of  the 
crime.  Perhaps  the  most  common  illustration  that  we  find  of  the 
proposition  that  ignorance  of  the  law  as  it  affects  ones  rights  is  in 
cases  of  theft  and  other  fraudulent  dealing  with  property.  A 
person  might  know  all  the  facts  concerning  his  claim  of  owner- 
ship and  these,  legally  speaking,  might  be  insufficient  to  give  him 
title,  still  if  he,  through  mistake  of  law,  honestly  believed  him- 
self to  be  the  owner,  taking  the  property  under  that  belief  could 
not  be  theft.  The  specific  criminal  intent  necessary  in  theft  does 
not  exist.  Had  he  known  the  facts  and  known  that  the  property 
was  not  his  and  had  taken  it  with  fraudulent  intent,  ignorantly 
believing  that  there  was  no  law  against  such  taking,  this  igno- 
rance would  in  nowise  constitute  a  defense.  This  would  be  igno- 
rance of  the  law  forbidding  the  act,  which  never  excuses. 

Ignorance  of  fact  does  excuse  very  frequently.  To  have  this 
result  the  ignorance  must  not  be  due  to  negligence  of  the  accused 
and  his  conduct  must  have  been  such  as  would  have  been  lawful 
had  the  facts  been  as  he  understood  them  to  be. 

Mutatis  mutandis,  the  propositions  announced  with  reference 
to  ignorance  are  applicable  to  mistake. 

Duress. — The  effect  of  duress  is  not  so  easily  ascertained. 
Under  certain  conditions  duress  is  a  defense.  This  is  nearly  al- 
ways true  in  cases  in  which  the  duress  is  exercised  by  actual  vio- 
lence. Even  in  these  cases,  however,  there  should  not  be  marked 
disproportion  between  the  violence  applied  to  the  person  relying 
on  the  duress  and  the  wrong  which  he  claims  he  was  coerced  into 
committing.  For  duress  by  threats  to  constitute  a  defense,  the 
threat  must  be  to  do  very  serious  harm  to  the  person  of  the  ac- 
cused and  must  be  so  made  as  to  be  reasonably  calculated  to  in- 
timidate a  person  of  ordinary  firmness  and  the  alleged  criminal 
act  must  take  place  in  the  presence  of  the  person  making  the 
threat.     If  these  facts  concur  they  usually  constitute  a  defense. 

Fraud,  as  such,  is  rarely  presented  as  a  defense  in  a  criminal 
action.  If  one  party  has  deceived  another,  this  state  of  mind, 
if  available  at  all  as  a  defense,  would  come  under  the  head  of 


CRIMINAL,   LAW.  521 

ignorance  or  mistake,  and  it  is  in  this  form  that  the  matter  usu- 
ally appears. 

Parties  Who  May  Commit  Crime. 

The  very  general  rule  is  that  any  person  having  the  mental  ca- 
pacity to  understand  the  nature  and  consequences  of  his  conduct 
and  to  entertain  the  necessary  criminal  intent  may  commit  crime. 
The  reverse  of  the  rule  is  also  true,  that  no  one  who,  at  the  time 
the  particular  offense  charged  was  committed,  was  mentally  in- 
capable of  appreciating  his  conduct  and  its  consequences  or  of 
entertaining  a  criminal  intent  can  be  guilty  of  crime. 

This  immunity  exists  in  behalf  of  those  who  are  permanently 
insane  or  mentally  defective  and  also  those  who  are  temporarily 
unsound.  There  is  a  difference  of  view  as  to  the  effect  of  drunken- 
ness on  liability  for  crime.  The  true  rule  seems  to  be  that  if  one 
not  then  designing  or  desiring  to  commit  a  crime,  shall  become 
intoxicated  to  such  extent  that  he  does  not  and  cannot  understand 
the  nature  of  his  conduct  and  its  consequences,  or  cannot  enter- 
tain a  specific  evil  intent  which  is  essential  to  the  particular  crime 
charged,  he  cannot  be  held  responsible  for  his  conduct  while  in 
this  condition.  On  the  other  hand,  if  one  while  he  has  his  facul- 
ties about  him  desires  to  commit  an  offense  and  intoxicates  him- 
self with  the  intent  and  expectation  of  committing  the  offense 
while  in  that  condition,  his  drunkeDness  will  not  excuse. 

At  Common  Law  and  in  all  the  States  infants  below  a  desig- 
nated age  are  conclusively  presumed  to  be  incapable  of  commit- 
ting crime.  This  age  at  Common  Law  is  seven  years.  It  differs 
in  the  different  States.  Above  this  designated  age  there  is  an- 
other period  of  years  during  which  the  infant  is  presumed  to  be 
incapable,  but  the  presumption  is  not  conclusive  and  may  be 
overcome  by  proof  in  the  particular  case.  After  the  lapse  of  this 
second  period,  which  usually  extends  to  twelve  or  fourteen  years, 
the  infant,  though  still  a  minor,  is  presumed  to  be  capable  of  com- 
mitting crime. 

Coverture  as  such  does  not  affect  liability  for  crime.  In  some 
statutes  it  is  provided  that  coercion  of  a  married  woman  by  her 
husband  is  more  effective  as  a  defense  or  mitigation  of  punish- 
ment than  duress  ordinarily  is. 

One  of  the  doctrines  of  the  Criminal  Law  is  that  the  defendant 


522  AMERICAN   ELEMENTARY   LAW. 

is  presumed  to  be  innocent  until  his  guilt  is  established  beyond  a 
reasonable  doubt.  This  presumption  does  not  apply  as  to  in- 
capacity to  commit  crime  except  as  to  children  in  their  earliest 
period  of  legal  responsibility,  during  which  time  the  presumption 
of  incapacity  obtains.  To  state  the  matter  a  little  differently, 
except  as  to  children,  as  above  noted,  the  burden  of  proof  to  show 
incapacity  to  commit  crime  or  to  entertain  criminal  intent  rests 
upon  the  defendant  and  not  upon  the  State.  This  is  the  rule  at 
Common  Law  and  in  practically  all  the  States,  though  there  may 
be  one  or  two  exceptions. 

Connection  of  Parties  with  a  Particular  Crime. 

Crimes  are  committed  in  a  great  many  different  ways.  Fre- 
quently a  number  of  persons  are  connected  in  different  ways  with 
the  same  offense.  This  connection  may  be  of  three  general  kinds : 
First,  participation  in  the  criminal  act  at  the  time  it  is  commit- 
ted; second,  co-operation  in  the  criminal  enterprise  prior  to  the 
commission  of  the  act ;  third,  actual  co-operation  with  the  criminal 
after  the  act. 

Different  names  are  used  in  different  jurisdictions  to  express 
these  different  relations  to  the  crime.  At  Common  Law,  parties 
actually  acting  together  in  the  commission  of  the  crime,  whether 
immediately  present  or  standing  guard  at  some  other  place  to 
protect  those  who  actually  do  the  unlawful  deed,  or  those  who 
do  an  act  with  design  that  it  should  be  hurtful,  which  act  does 
result  in  the  crime,  as  he  who  lays  poison  in  the  way  of  another 
designing  for  him  to  take  and  thus  to  kill  him,  are  known  as  prin- 
cipals. Those  who  have  aided,  abetted,  or  encouraged  the  com- 
mission of  the  crime  before  it  takes  place  but  who  do  not  them- 
selves perform  the  act,  or  take  any  part  in  the  criminal  enterprise 
at  the  time  the  act  is  performed,  are  known  as  accessories  before 
the  fact;  while  those  who  have  no  connection  with  the  crime  be- 
fore or  at  the  time  of  its  commission,  but  who  afterward  so  aid 
and  abet  the  criminal  as  to  become  legally  parties  to  the  crime, 
are  known  as  accessories  after  the  fact.  These  Common  Law 
names  are  retained  in  a  number  of  the  States.  In  others  those 
persons  who  would  be  known  as  accessories  before  the  fact  are 
called  accomplices,  and  the  Common  Law  accessories  after  the 
fact  are  called  accessories  simply.    Words  are  of  secondary  im- 


CRIMINAL   LAW.  523 

portance,  but  there  is  material  difference  between  instigating 
crime,  committing  a  crime  one's  self,  and  shielding  a  criminal 
after  the  crime  has  been  committed.  These  distinctions  the  law 
recognizes  and  enforces.  Most  frequently  a  principal  is  punished 
more  severely  than  an  accomplice  or  accessory  before  the  fact, 
and  these  in  turn  are  punished  more  severely  than  the  accessory 
after  the  fact.  This,  of  course,  is  not  universally  so,  but  is  so 
frequent  as  to  be  properly  designated  a  general  rule.  Another 
recognition  of  the  difference  is  found  in  the  usual  provision  that 
accessories  after  the  fact,  and  in  many  instances  accessories  before 
the  fact,  are  not  to  be  tried  in  advance  of  the  principal  if  he  be 
in  custody. 

As  accessories  after  the  fact  have  no  connection  with  the  of- 
fense until  after  it  is  committed  and  then  usually  only  by  aiding 
the  principal  in  avoiding  arrest  and  escaping  trial,  it  is  fre- 
quently provided  that  close  relatives  of  the  criminal  are  not  re- 
sponsible as  accessories  after  the  fact.  This  is  a  concession  to 
family  ties  and  the  affection  which  persons  closely  related  usually 
sustain  to  one  another. 

Punishments. 

Punishments  known  to  the  Common  Law  are  death,  imprison- 
ment, forfeiture  of  estates,  and  pecuniary  fines.  These  are  the 
present  prevalent  Common  Law  penalties.  Other  methods  of 
punishment  have  been  practiced  from  time  to  time  and  some  of 
them  may  still  obtain  in  some  of  the  States.  The  Common  Law 
method  of  taking  life  is  by  hanging.  This  is  still  the  prevalent 
mode,  though  electrocution  has  been  substituted  in  some  of  the 
States.  Imprisonment  may  be  either  in  the  State  or  Federal  pen- 
itentiaries or  in  local  jails.  It  may  extend  from  a  short  period 
to  a  life  sentence.  Pecuniary  fines  may  be  in  such  amount  as  the 
proper  authorities  determine. 

Defining  and  grading  crimes  and  prescribing  penalties  pertain 
to  the  Legislative  Department  of  the  government  subject  to  such 
limitations  as  are  contained  in  the  constitution.  Cruel  and  un- 
usual punishments  are  usually  forbidden  by  constitutional  pro- 
visions. While  the  fixing  of  penalties  is  a  legislative  function  il 
is  not  necessary  that  the  legislature  should  fix  absolutely  the 
length  of  the  term  of  imprisonment  or  the  exact  amount  of  pe- 


524  AMERICAN   ELEMENTARY   LAW. 

cuniary  fine  to  be  imposed.  The  facts  and  circumstances  of  each 
particular  case  show  vast  differences  in  the  gravity  of  offenses 
which  come  under  the  same  name,  and  it  is  a  prevalent  habit  in 
the  different  States  and  in  the  Federal  Government  as  well,  to  fix 
minimum  or  maximum  terms  of  imprisonment  or  amounts  of  fine 
and  let  the  court  adapt  the  punishment  to  the  facts  of  the  particu- 
lar case,  within  the  limits  thus  indicated.  Sometimes  the  law 
fixes  both  a  maximum  and  a  minimum  within  which  the  court  is 
free  to  impose  a  penalty.  It  has  been  held  in  some  instances  that 
where  the  Legislature  has  declared  an  act  to  be  penal  and  has 
prescribed  no  penalties  that  this  is  an  adoption  of  the  Common 
Law  penalty  attached  to  such  an  offense  and  that  the  court  may 
impose  the  Common  Law  punishment. 

There  is  a  difference  in  the  procedure  in  the  different  courts 
as  to  assessing  the  penalty  by  the  judge  or  by  the  jury.  In  the 
Federal  courts  and  in  many  of  the  State  courts,  the  jury  passes 
upon  the  question  of  guilt  or  innocence  only,  and  the  judge  fixes 
the  penalt}'  within  the  limits  fixed  by  law.  In  other  States  the 
jury  passes  not  only  on  the  question  of  guilt  but  also  determines 
the  penalty  within  legal  limits. 

In  addition  to  the  direct  penalties  for  heinous  offenses  assessed 
by  the  court  or  jury,  conviction  of  felony  or  treason  carries  with 
it  as  an  incident  loss  of  political  rights  and  of  competency  as  a 
witness.  This,  however,  may  be  removed  by  pardon  from  the 
chief  executive. 

Different  Classes  of  Offenses. 

It  would  be  useless  to  undertake  to  discuss  in  detail  the  different 
offenses  against  the  criminal  law  of  the  several  States  or  of  the 
United  States.  Even  different  general  classification  of  offenses 
are  numerous. 

Blackstone  deals  with  them  under  fourteen  general  heads  as 
follows : 

(1)  Offense  against  God  and  religion. 

(2)  Against  the  law  of  nations. 

(3)  High  treason. 

(4)  Felonies  injurious  to  the  King's  prerogative. 

(5)  Praemunire. 

(6)  Misprisions  and  contempts  affecting  the  King  and  Govern- 
ment. 


CRIMINAL   LAW.  525 

(7)  Offenses  against  public  justice. 

(8)  Offenses  against  the  public  peace. 

(9)  Offenses  against  the  public  trade. 

(10)  Offenses  against  the  public  health,  and  the  public  police 
or  economy. 

(11)  Homicide. 

(12)  Offenses  against  the  persons  of  individuals. 

(13)  Offenses  against  the  habitations  of  individuals,  and 

(14)  Offenses  against  private  property. 

It  is  evident  that  some  of  these  subdivisions  could  never  have 
existed  in  the  United  States  since  the  War  of  the  Revolution. 
Others  of  them  are  practically  obsolete. 

There  is  noted  lack  of  harmony  in  the  classification  of  offenses 
in  the  Codes  of  the  different  States,  though  they  adhere  somewhat 
to  the  same  general  outline.  No  attempt  at  a  summary  of  them 
will  be  made. 

PROCEDURE. 

There  are  two  essentially  different  kinds  of  proceedings  in 
Criminal  courts.  One  is  known  as  a  preliminary  examination 
or  preliminary  trial,  the  other  as  a  final  trial.  The  purpose  of 
the  former  is  not  to  ascertain  and  judicially  determine  the  guilt 
or  innocence  of  the  accused,  but  simply  to  decide  whether  or  not 
there  is  sufficient  probability  of  guilt  to  justify  the  court  or  mag- 
istrate making  the  investigation  to  detain  the  accused  until  the 
case  can  be  passed  upon  by  a  court  having  jurisdiction  to  try  it 
on  the  merits.  In  such  investigation  the  presiding  officer  acts 
rather  as  a  committing  magistrate  than  as  a  judge.  No  indict- 
ment or  presentment  is  necessary  as  a  basis  for  such  examina- 
tion ;  there  is  no  jury  in  the  trial.  The  magistrate  has  no  juris- 
diction to  acquit  or  convict  the  defendant.  The  extent  of  his 
power  is  to  release  him  from  that  complaint  and  arrest,  if  he  does 
not  believe  there  is  probable  grounds  to  hold  him  for  trial,  or 
to  remand  him  to  jail  or  compel  him  to  give  bond  for  his  appear- 
ance to  answer  trial  before  the  proper  court,  in  the  event  he 
shall  find  that  he  is  probably  guilty. 

The  second  kind  of  proceedings  in  criminal  courts  are  trials 
upon  the  merits.  It  is  in  these  trials  that  the  abstract  rules  of 
Criminal  Law  established  for  the  {protection  of  the  public  are 


526  AMERICAN   ELEMENTARY   LAW. 

actually  brought  to  bear  upon  and  enforced  against  particular 
individuals.  These  trials  involve  the  exercise  of  all  three  phases 
of  judicial  power,  that  is,  the  power  to  investigate  conduct,  to 
determine  and  adjudicate  its  legal  character,  and  pronounce 
judgment  thereupon,  and  to  enforce  such  judgment,  and  all 
courts  which  are  to  try  cases  of  this  kind  must  be  organized  with 
reference  thereto. 
Juries. 

It  is  a  deeply  rooted  doctrine  of  the  Common  Law  that  every 
person  accused  of  crime  shall  be  entitled  to  a  speedy  and  public 
trial  by  a  jury  of  his  peers.  This  rule  obtains  in  the  United 
States  courts  and  in  the  courts  of  practically  all  of  the  States, 
though  it  is  not  imperative  that  a  jury  be  provided  in  the  trial 
of  some  petty  offenses.  A  jury  in  the  Federal  court  means 
twelve  men  and  their  verdict  must  be  unanimous.  The  pro- 
vision in  the  Fourteenth  Amendment  to  the  Federal  Constitu- 
tion providing  for  due  process  of  law  in  the  different  States,  does 
not  deprive  the  States  of  authority  to  abolish  jury  trials  in  crim- 
inal cases  nor  require  them  to  have  twelve  men  on  a  jury  or  the 
unanimous  assent  of  all  the  jurors  to  a  verdict. 

Pleadings  by  the  State. — One  of  the  peculiar  institutions  of 
the  Common  Law  is  the  grand  jury.  This  is  an  inquisitorial 
body  organized  by  and  in  connection  with  one  of  the  more  im- 
portant courts  of  the  country,  to  inquire  into  violations  of  the 
Criminal  Law  within  the  county  or  district  in  which  the  court 
is  held,  and  to  prefer  appropriate  charges  against  all  persons 
believed  to  be  guilty  of  crime.  Each  grand  jury  is  selected  from 
the  citizens  residing  within  the  district  or  county  in  which  the 
court  is  held,  having  the  qualifications  prescribed  by  law.  The 
number  of  its  members  is  not  fixed  absolutely  but  is  usually  not 
less  than  twelve  nor  more  than  sixteen.  Their  investigations  are 
ex  parte.  Witnesses  are  examined  by  them  under  oath  and  if 
a  sufficient  number  of  the  grand  jurors  believe  the  party  com- 
plained against  to  be  guilty,  they  prefer  charges  against  him  to 
the  court  by  which  the  jury  is  empaneled. 

There  were  two  methods  at  Common  Law  of  preferring  these 
charges;  one  by  presentment,  which  was  a  return  of  the  charge 
into  open  court  by  the  grand  jury  itself  without  any  formal 
preparation  of  a  bill  by  the  prosecuting  attorney.     This  method. 


r 
CRIMINAL  LAW.  527 

though  mentioned  in  the  Constitution  of  the  United  States  and 
in  the  constitutions  of  a  number  of  the  states  has  practically 
fallen  into  disuse. 

The  second  method  and  the  one  now  almost  uniformly  used  in 
the  prosecution  of  serious  offenses  is  by  indictment.  After  the 
grand  jury  has  investigated  the  charge,  and  the  requisite  number 
have  voted  in  favor  of  prosecuting  the  accused,  they  instruct 
the  District  Attorney  or  other  prosecuting  officer  to  prepare  a 
formal  written  charge  against  the  accused,  identifying  him  by 
name  or  description,  specifically  stating  the  offense,  and,  as 
held  requisite  in  most  States,  the  facts  constituting  the  offense 
preferred  against  him,  together  with  the  time  and  place  where 
the  offense  was  committed.  This  instrument  when  prepared  by 
the  prosecuting  officer  is  ordinarily  signed  by  the  foreman  of 
the  grand  jury  and  by  the  grand  jury  brought  into  open  court 
and  delivered  to  the  judge  or  clerk.  There  are  certain  formal- 
ities that  must  be  observed  by  the  prosecuting  attorney  in  the 
preparation  of  the  paper.  This  paper,  so  prepared  and  presented 
in  court,  is  called  an  indictment. 

The  methods  of  preferring  criminal  charges  against  par- 
ties which  do  not  require  action  by  a  grand  jury  are  information 
and  complaint.  An  information  is  a  written  instrument  pre- 
pared by  the  prosecuting  officer  charging  the  person  with  a  vio- 
lation of  the  criminal  law  and  setting  out  the  facts  constituting 
such  violation,  made  under  the  official  oath  of  the  officer  and 
presented  to,  and  filed  in,  the  court  having  jurisdiction  of  the 
offense.  This  is  the  usual  method  of  prosecuting  more  serious 
misdemeanors. 

A  complaint  is  a  less  formal  written  charge  of  a  violation  of 
the  law  made  by  a  private  individual  under  oath  and  filed  with 
some  criminal  court  or  magistrate.     This  is  the  ordinary  method 
of  presenting  petty  offenses  in  the  inferior  courts. 
Pleadings  by  the  Defendant. 

All  pleadings  to  the  merits  by  the  defendant  in  criminal  cases 
are  oral,  a  plea  of  not  guilty  being  sufficient  for  such  purposes. 
Pleas  in  abatement  and  motions  to  quash  indictments,  applica- 
tions for  change  of  venue,  or  for  continuance,  and  other  similar 
matters,  are  required  to  be  in  writing,  but  the  old  Common  Law- 
rule  as  to  oral  pleading  to  the  merits  is  still  in  effect. 


528  AMERICAN   ELEMENTARY   LAW. 

In  capital  cases  the  defendant  is  arraigned  before  the  court. 
This  consists  in  bringing  the  defendant  in  person  into  open  court 
and  having  the  indictment  read  to  him  and  requiring  him  to 
enter  a  plea  thereto.  This  always  takes  place  before  the  trial 
proper  begins. 

After  the  jury  is  empaneled  the  indictment  is  again  read  to 
them  in  the  presence  of  the  defendant  and  he  pleads  orally  guilty 
or  not  guilty. 

Evidence. 

The  defendant  in  every  criminal  case  goes  to  trial  protected 
by  a  presumption  of  innocence,  which  continues  to  protect  him 
until  his  guilt  is  established  by  competent  evidence  beyond  a 
reasonable  doubt.  The  ordinary  rules  of  evidence  obtain  in 
criminal  cases  in  all  matters  not  governed  by  some  special  rule 
modifying  the  general  rules  of  law.  The  defendant  cannot  be 
compelled  to  testify  against  himself.  At  Common  Law  he  is 
not  permitted  to  testify  in  his  own  favor  but  under  the  Federal 
Statutes  and  the  statutes  of  many  of  the  States  he  is  permitted 
to  do  so. 
Argument  of  Counsel 

When  the  evidence  in  the  case  is  concluded  the  attorneys  in 
the  case  make  their  argument  for  their  respective  clients. 
Questions  of  law  are  referred  to  the  judge,  questions  of  fact  to 
the  jury. 

Charge  and  Verdict 

After  the  argument,  the  judge  charges  the  jury  as  to  the 
law  of  the  case  and  the  jury  proceeds  to  consider  the  guilt  or 
innocence  of  the  defendant.  If  the  facts  do  not  show  the  de- 
fendant's guilt  beyond  a  reasonable  doubt  it  is  the  duty  of  the 
jury  to  acquit  him  and  bring  in  a  verdict  of  not  guilty.  The  effect 
'  of  such  verdict  is  to  free  the  defendant  from  all  further  criminal 
liability  for  the  offense  for  which  he  has  been  tried,  or  for  any 
less  offense  included  therein,  or  for  any  greater  offense  based 
upon  the  same  act  or  omission  of  which  the  offense  of  which 
he  was  acquitted  is  an  essential  element. 

If  the  jury  find  the  defendant  guilty  they  return  their  ver- 
dict into  court  accordingly.  If  it  is  in  a  jurisdiction  in  which 
the  jury  assesses  the  punishment,  they  must  name  the  penalty 


CRIMINAL  LAW.  529 

in  their  verdict ;  if  it  is  not  in  such  jurisdiction  they  simply  find 
the  fact  of  guilt  and  leave  the  punishment  to  the  judge. 
Judgments. 

After  the  verdict  has  been  received  a  proper  judgment  is  pre- 
pared and  entered  declaring  the  defendant  innocent  and  releas- 
ing him  from  the  custody  or  adjudging  him  to  be  guilty  and  spec- 
ifying the  punishment  which  is  to  be  inflicted  upon  him.  If  this  is 
a  judgment  of  acquittal  it  is  conclusive ;  if  it  is  a  judgment  of  con- 
viction it  may  be  set  aside  by  the  court  rendering  it  by  a  motion 
for  a  new  trial  or  in  arrest  of  judgment,  or  by  some  higher  court 
upon  appeal  or  on  writ  of  error  as  the  law  of  the  particular  jur- 
isdiction may  provide. 

Constitutional  Guarantees  Relating  to  Criminal  Matters. 

Both  in  the  Federal  and  State  constitutions  there  are  many 
guarantees  of  rights  to  the  individual  relating  to  liability  for 
crime  and  the  manner  of  proceeding  in  criminal  cases. 

We  give  those  from  the  Federal  Constitution.  As  it  is  im- 
practicable to  cover  all  the  provisions  of  all  the  State  constitu- 
tions, we  give  those  from  the  present  constitution  of  Texas  aa 
typical  of  those  of  all  the  States.  It  must  be  understood  that  these 
identical  provisions  do  not  occur  in  the  constitution  of  the  other 
States,  but  the  general  tenor  and  effect  of  them  is  common  to  'all 
the  States  and  hence  a  fairly  good  idea  of  the  general  trend  of 
American  thought  and  law  on  this  subject  may  be  obtained  by 
a  study  of  the  quoted  provisions  as  examples. 

From  the  Constitution  of  the  United  States. — "The  privilege 
of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  Rebellion  or  Invasion  the  public  safety  may 
require."  Art.  I,  Sec.  9,  No.  2. 

"The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury;  and  such  Trial  shall  be  held  in  the  State  where 
the  said  Crimes  shall  have  been  committed;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall  be  at  such  Place  or 
Places  as  the  Congress  may  by  Law  have  directed."  Art  III, 
Sec.  2,  No.  3. 

' '  Treason  against  the  United  States  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering  to  their  Enemies,  giving 
34 


530  AMERICAN   ELEMENTARY   LAW. 

them  Aid  and  Comfort.  No  Person  shall  be  convicted  of  Treason 
unless  on  the  Testimony  of  two  Witnesses  to  the  same  overt  Act, 
or  on  Confession  in  open  Court."     Art.  Ill,  Sec.  3. 

"A  person  charged  in  any  State  with  Treason,  Felony,  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found  in  another 
State,  shall  on  demand  of  the  executive  Authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  Crime."    Art.  IV,  Sec.  2,  No.  2. 

' '  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated  and  no  "Warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized."     Amendment  IV. 

"No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
Grand  Jury,  except  in  cases  arising  in  the  land  and  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  offense  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  he  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  to  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  shall  private  property  be  taken  for  public  use,  without  just 
compensation."     Amendment  V. 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  witnesses  against  him;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  Assistance 
of  Counsel  for  his  defense. ' '    Amendment  VI. 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  mi  usual  punishments  inflicted."  Amend- 
ment. VIII. 

"All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 


CRIMINAL  LAW.  531 

immunities  of  citizens  of  the  United  States;  nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property,  without  due  proc- 
ess of  law;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."     Amendment  XIV,  Sec.  1. 

State  Provisions — Texas  Constitution  Being  Used  As  a  Type. — ■ 
' '  The  people  shall  be  secure  in  their  persons,  houses,  papers,  and 
possession  from  all  unreasonable  seizures  or  searches,  and  no  war- 
rant to  search  any  place,  or  to  seize  any  person  or  thing,  shall 
issue  without  describing  them  as  near  as  may  be,  nor  without 
probable  cause  supported  by  oath  or  affirmation."    Art.  I,  Sec.  9. 

"In  all  criminal  prosecutions  the  accused  shall  have  a  speedy 
public  trial  by  an  impartial  jury.  He  shall  have  the  right  to 
demand  the  nature  and  the  cause  of  the  accusation  against  him 
and  to  have  a  copy  thereof.  He  shall  not  be  compelled  to  give 
evidence  against  himself.  He  shall  have  the  right  of  being  heard 
by  himself  or  counsel  or  both ;  shall  be  confronted  with  the  wit- 
nesses against  him,  and  shall  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor.  And  no  person  shall  be  held 
to  answer  for  a  criminal  offense,  unless  on  indictment  of  a  grand 
jury,  except  in  cases  in  which  the  punishment  is  by  fine  or  im- 
prisonment, otherwise  than  in  the  penitentiary,  in  cases  of  im- 
peachment, and  in  eases  arising  in  the  army  or  navy,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  of  public  dan- 
ger."   Art.  I,  See.  10. 

"All  prisoners  shall  be  bailable  by  sufficient  sureties,  unless 
for  capital  offenses  when  the  proof  is  evident ;  but  this  provision 
shall  not  be  so  construed  as  to  prevent  bail  after  indictment 
found,  upon  examination  of  the  evidence  in  such  a  manner  as 
may  be  prescribed  by  law."     Art.  I,  Sec.  11. 

"The  writ  of  habeas  corpus  is  a  writ  of  right,  and  shall  never 
be  suspended.  The  Legislature  shall  enact  laws  to  render  the 
remedy  speedy  and  effectual."     Art.  I,  Sec.  12. 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  nor  unusual  punishment  inflicted.  All  courts 
shall  be  open,  and  every  person  for  an  injury  done  him  in  his 
lands,  goods,  person,  or  reputation  shall  have  remedy  by  due 
course  of  law."     Art.  1.  Sec.  13. 

"No  person,  for  the  same  offense,  shall  be  twice  put  in  jeop 
ardy  of  life  or  liberty;  nor  shall  a  person  be  again  put  upon 


532  AMERICAN   ELEMENTARY   LAW. 

trial  for  the  same  offense  after  a  verdict  of  not  guilty  in  a  court 
of  competent  jurisdiction."     Art.  I,  Sec.  14. 

' '  The  right  of  trial  by  jury  shall  remain  inviolate.  The  Legis- 
lature shall  pass  such  laws  as  may  be  needed  to  regulate  the  same, 
and  to  maintain  its  purity  and  efficiency."     Art.  I,  Sec.  15. 

' '  No  bill  of  attainder,  ex  post  facto  law,  retroactive  law,  or  any 
law  impairing  the  obligation  of  contracts,  shall  be  made."  Art. 
I,  Sec.  16. 

"No  citizen  of  this  State  shall  be  deprived  of  life,  liberty, 
property,  privileges,  or  immunities,  or  in  any  manner  disfran- 
chised, except  by  the  due  course  of  the  law  of  the  land."  Art. 
I,  See.  19. 

' '  No  citizen  shall  be  outlawed ;  nor  shall  any  person  be  trans- 
ported out  of  the  State  for  any  offense  committed  within  the 
same."    Art.  I,  Sec.  20. 

"No  conviction  shall  work  corruption  of  blood,  or  forfeiture 
of  estate;  and  the  estates  of  those  who  destroy  their  own  lives 
shall  descend  or  vest  as  in  case  of  natural  death."  Art.  I,  Sec. 
21. 

"Treason  against  the  State  shall  consist  only  in  levying  war 
against  it,  or  adhering  to  its  enemies,  giving  them  aid  and  com 
fort;  and  no  person  shall  be  convicted  of  treason  except  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court. "    Art.  I,  Sec.  22. 


CHAPTER  IL 

TORTS. 
General  Conception. 

Our  work  up  to  this  time  has  covered  many,  if  not  all,  of  the 
general  principles  underlying  the  Law  of  Torts.  We  will  now 
attempt  their  more  particular  application  to  this  branch  of  the 
law,  first  by  recapitulating  some  of  these  principles,  and  second 
by  taking  up  a  few  of  the  more  important  torts  and  showing  their 
application  in  these. 

Civil  Law  embraces  the  mass  of  rules  which  govern  the  conduct 
of  individuals  in  their  dealings  with  and  conduct  toward  each 
other.  It  is  divided  into  Contract  Law,  and  Non-Contract,  or 
Tort  Law. 

The  first  embraces  all  rules  regulating  rights  and  duties  as- 
sumed voluntarily  by  the  parties. 

The  second  embraces  all  the  -rules  regulating  rights  recognized 
and  duties  imposed  by  law  not  depending  on  the  assent  of  the 
parties. 

As  the  first  class  includes  all  legal  rights  and  duties  not 
embraced  in  the  latter,  and  as  the  former  is  susceptible  of  reason- 
ably exact  definition,  it  is  usual  to  define  the  latter  by  use  of  gen- 
eral terms,  excepting  therefrom  the  first  class.  This  is  conven- 
ient, but  to  get  practical  benefit  from  it  we  must  have  some  idea 
of  the  exception,  that  is,  of  contract  rights  and  duties.  A  con- 
tract is  defined  to  be:  "An  agreement  between  competent  par- 
ties, based  on  valid  consideration,  to  do  or  not  do  certain  things." 
Here  the  duty  to  do  or  not  do  the  thing  is  voluntarily  assumed 
or  undertaken  by  the  party  subject  thereto.  The  law  did  not 
impose  it  upon  him  of  its  own  force.  It  did  not  compel  him  to 
enter  into  the  contract.  It  left  him  entirely  free  to  make  the 
agreement,  or  to  leave  it  alone.  Its  only  part  in  the  matter  is  to 
say  to  him:  "If  you  go  into  the  contract,  and  assume  its  duties, 
you  must  observe  them  and  carry  them  out."  It  recognizes  the 
duties  after  they  are  undertaken  by  the  parties,  but  does  not 
impose  them  in  the  first  in  sin  nee. 


534  AMERICAN   ELEMENTARY   LAW. 

Thus,  it  is  apparent  that  the  basis  of  legal  right  and  duty  in 
torts  is  the  law,  the  will  of  the  sovereign,  independent  of  the 
will  of  the  party ;  while  the  basis  of  legal  right  and  duty  in  con- 
tract is  the  will  of  the  parties  to  the  agreement,  recognized  by 
law. 

We  will  now  consider  the  definition  of  a  tort. 
Definition. 

The  three  following  are  from  approved  authorities: 

1.  "A  tort  is  an  act,  or  omission,  giving  rise,  in  virtue  of  the 
Common  Law  jurisdiction  of  the  court,  to  a  civil  remedy  which  is 
not  an  action  on  contract."  (Pollock.) 

2.  "An  injury  inflicted  otherwise  than  by  mere  breach  of  con- 
tract, or,  to  be  more  nicely  accurate,  a  tort,  is  one's  disturbance 
of  another  in  his  rights  which  the  law  has  created,  either  in  ab- 
sence of  contract,  or  in  consequence  of  a  relation  which  a  con- 
tract has  established  between  the  parties."  (Bishop.) 

3.  "A  tort,  then,  is  any  wrong,  not  consisting  in  mere  breach 
of  contract,  for  which  the  law  undertakes  to  give  to  the  injured 
party  some  appropriate  remedy  against  the  wrong-doer." 
(Cooley.) 

From  the  point  of  view  of  the  tort-feasor,  a  tort  is  an  act,  or 
omission,  in  breach  of  duty  imposed  by  law,  not  undertaken  by 
contract,  for  which  the  law  gives  a  civil  remedy.  From  the  point 
of  view  of  the  injured  party,  it  is  an  act,  or  omission,  in  violation 
of  right,  not  created  by  contract  existing  in  the  injured  party, 
for  which  the  law  gives  a  civil  remedy. 

The  idea  of  a  tort  implies  the  following : 

(1)  An  injured  person,  who  is  always  the  one  having  the  legal 
right. 

(2)  A  wrong-doer,  always  the  one  violating  the  right  of  the 
other. 

(3)  A  legal  right  in  the  injured  person. 

(4)  A  legal  wrong  by  the  tort-feasor. 

(5)  Injury  to  the  one  having  the  right,  resulting  directly  and 
proximately  from  the  wrong  of  the  other. 

(6)  A  civil  remedy  for  the  injury. 

There  may  be  more  than  one  injured  party  and  more  than  one 
wrong-doer,  but  there  must  always  be  at  least  one  of  each. 

In  the  definitions  given  above  the  idea  of  civil  remedy  is  quite 


TORTS.  535 

prominent.  This  results  from  the  very  close,  if  not  inseparable, 
connection  between  right  and  remedy.  In  the  definitions  of  legal 
right  given  by  many  prominent  writers  this  idea  is  the  predom- 
inating one,  and  the  right  is  said  not  only  to  depend  on,  but 
actually  to  consist  in,  the  capacity  to  control  by  law  the  conduct 
of  others.  This  control,  in  almost  all  instances,  being  exercisable 
only  through  application  of  legal  remedias,  and  these  being  ordi- 
narily afforded  the  private  individual  through  civil  action,  the 
naturalness  of  the  expression  is  apparent. 

Torts  as  Contrasted  with  Crimes  and  Breaches  of  Contract. 

The  same  act  may  be  a  tort,  a  crime,  and  a  breach  of  contract. 
This  is,  of  course,  infrequent,  but  not  impossible.  The  act  as- 
sumes these  different  aspects  from  different  points  of  view.  If 
it  be  violative  of  the  laws  made  to  protect  the  public  as  such, 
from  that  point  of  view  it  is  a  crime.  If  it  be  violative  of  the 
law  made  to  protect  individuals,  in  absence  of  contract  between 
them,  it  is  a  tort;  and  if  there  be  some  contract  between  the 
parties  which,  by  its  terms,  duplicates  their  antecedent  legal 
rights  and  duties,  it  is  a  breach  of  contract.  To  illustrate:  A 
and  B  have  a  difficulty,  and  A  threatens  to  follow  this  up  by  in 
juring  B.  B  takes  the  necessary  steps  to  have  A  placed  under 
a  peace  bond.  Afterward,  A  commits  an  assault  and  battery  on 
B,  inflicting  serious  bodily  harm.  In  so  far  as  this  battery  was 
.in  violation  of  the  criminal  law,  it  is  a  crjme,  and  punishable  as 
such.  In  so  far  as  it  violates  B's  right  of  bodily  security,  it  is 
a  tort;  and  in  so  far  as  it  violates  A's  agreement  to  keep  the 
peace,  evidenced  by  the  peace  bond,  it  is  a  breach  of  contract. 

Again,  the  law  fixes  the  rate's  which  may  be  charged  by  com- 
mon carriers  for  particular  services,  and  makes  it  criminal  to 
make  higher  charges  on  that  account.  A  shipper  tenders  freight 
to  be  carried,  and  the  company  gives  him  a  bill  of  lading  setting 
out  the  lawful  charges.  The  goods  are  carried,  and  the  shipper 
tenders  the  lawful  and  contract  price  of  carriage  and  demands 
the  goods.  The  company  demands  a  higher  rate,  and  refuses  to 
deliver  the  articles.  Here  the  overcharge  is  a  violation  of  crim- 
inal law,  a  crime,  also  a  breach  of  the  legally  imposed  duty  to 
carry  at  the  rates  fixed  by  law,  a  tort,  and  of  contract  duty  evi- 
denced by  the  bill  of  lading,  a  breach  of  contract. 

In  such  case  the  State  could  pros-cute  for  the  crime  and  thu 


536  AMERICAN   ELEMENTARY   LAW. 

individual  could  sue  for  the  tort,  or  breach  of  contract,  as  he 
should  choose.  The  criminal  prosecution  and  the  civil  suit, 
while  growing  out  of  the  same  transaction  and  supported  by  the 
same  evidence,  would  have  no  other  connection.  The  prosecu- 
tion for  the  crime  would  not  affect  the  civil  suit,  nor  could  the 
latter  affect  the  former.  The  judgment  rendered  in  either  could 
not  be  used  as  evidence  in  the  other,  but  each  must  be  tried  and 
determined  according  to  the  evidence  introduced  in  it.  The 
shipper  could  not  have  two  recoveries  and  satisfactions.  In 
many  States  he  could  sue  and  embrace  two  counts  in  his  petition, 
and  thus  present  both  phases  of  the  case  to  the  court,  and  could 
recover  on  either,  but  as  the  measure  of  damage,  in  both  aspects 
of  the  case,  would  be  the  same,  he  could  have  only  one  judgment 
and  payment.  If  he  sued  on  either  the  tort  or  breach  of  contract, 
without  joining  the  other,  this  would  practically  be  an  election 
of  remedies,  which  would,  ordinarily,  prevent  a  suit  on  the  other. 

These  illustrations  will  make  plain  the  exceptional  cases  in 
which  the  same  act  may  be  looked  at  from  three  different  points 
of  view ;  crime,  tort,  and  breach  of  contract.  It  is  quite  frequent 
that  the  same  act,  or  omission,  is  a  crime  and  a  tort.  This  is  true 
of  all  intentional  unlawful  injuries  to  the  person,  all  cases  of 
theft,  etc. 

While  it  is  true  that  the  same  act  or  omission  may  be  both  a 
tort  and  a  breach  of  contract,  it  is  still  true  that  no  act  or  omis- 
sion which  is  merely  a  "breach  of  contract  is  ever  a  tort.  Unless 
there  be  a  duty  imposed  by  law,  not  depending  directly  on  con- 
tract, there  can  be  no  tort,  so  that  in  all  instances  the  act,  or  omis- 
sion, in  its  tort  aspect,  must  be  a  violation  of  a  legally  imposed 
duty. 

We  have  found  that  rights  and  duties  between  any  particular 
individuals  change  "with  every  change  in  the  legal  relations  which 
exist  between  them ;  and  as  the  differences  in  legal  relations  often 
arise  as  a  result  of  contract,  it  results  that  the  legally  imposed 
duty  growing  out  of  the  new  relation  which  the  contract  has 
created  between  the  parties  is  in  this  indirect  sense,  dependent 
on  contract. 

To  illustrate:  The  law  fixes,  by  general  rules,  the  respective 
rights  of  master  and  servant,  and  their  duties.  Ordinarily,  these 
may  be  modified  or  changed  by  agreement  between  the  parties; 


TORTS.  537 

but,  in  actual  life,  not  one  contract  of  hiring  in  hundreds  at- 
tempts anything  of  the  kind,  and  the  legally  imposed  conditions 
exist  unchanged.  Now,  the  rights  and  duties  of  the  parties  are 
fixed  by  law,  and  if  either  of  them  violates  the  right  of  the  other, 
thus  fixed,  he  commits  a  tort.  This  tort  would  not  have  been 
possible  but  for  the  contract,  by  which  the  one  became  master 
and  the  other  servant ;  yet  the  terms  of  that  contract  did  not  ex- 
pressly cover  the  right  violated.  The  same  is  true  as  between 
passenger  and  carrier. 

In  the  cases  in  which  parties  enter  into  some  special  relation 
and  agree  on  their  rights  and  duties  therein,  and  make  the  agree- 
ment to  correspond  exactly  with  the  law  fixing  such  rights  and 
duties,  the  rights  and  duties  may  be  said  to  have  a  dual  basis, 
one  contract,  and  the  other  tort  law.  A  violation  of  these  duties 
would,  in  such  case,  be  both  a  breach  of  contract  obligation  and  a 
tort.  The  wrong  would  be  a  breach  of  contract,  but  not  a  mere 
breach  of  contract,  for  in  its  other  aspect  the  wrong  is  a  tort. 
This  is  what  Mr.  Cooley  means  when  he  says  a  tort  is  a  "wrong 
not  consisting  in  a  mere  breach  of  contract." 

How  Torts  May  be  Committed. 

Mr.  Cooley  tells  us  that  "one  may  become  liable  in  an  action 
for  tort : 

(1)  "By  actually  doing,  to  the  prejudice  of  another,  some- 
thing he  had  no  legal  right  to  do. 

(2)  "By  doing  something  he  may  rightfully  do,  but  wrong- 
fully or  negligently  doing  it  by  such  means,  or  at  such  time,  or 
m  such  manner  that  another  is  injured. 

(3)  "By  neglecting  to  do  something  which  he  ought  to  do, 
whereby  another  suifers  an  injury." 

This  statement  is  very  broad;  but,  for  general  purposes,  it 
may  be  accepted  as  correct. 

The  wrong  may  be  either  doing  or  failing  to  do.  This  is  the 
same  idea  that  Mr.  Pollock  expresses  in  his  definition  in  the 
terms  "act  or  omission."  This  is  embraced  in  Judge  Cooley 's 
definition  by  the  word  "wrong,"  though  the  idea  is  not  made 
prominent  by  him  in  tha'c  connection. 

In  either  case,  the  act,  or  omission,  must  be  a  violation  of  a 
legal  right.  The  fact  that  one  does,  or  omits  to  do.  and  that 
injury  results,  is  not  sufficient.     This  might  be  an  inevitable  ac 


538  AMERICAN   ELEMENTARY   LAW. 

cident,  or  the  act  done  might  he  in  the  proper  exercise  of  a  legal 
right  or  performance  of  a  legal  duty. 

The  Nitroglycerine  Case  (15  Wall.)  is  a  fine  example  of  the 
first.  Shooting  a  person  in  self-defense  is  an  example  of  the  sec- 
ond, and  the  execution  of  a  prisoner  under  legal  sentence  is  an 
example  of  the  third.  In  each  of  these  cases  there  is  an  act  per- 
formed by  one,  directly  and  proximately  resulting  in  injury  to 
another,  but  no  one  of  them  is  a  tort,  for  the  element  of  breach 
of  legal  duty  is  wanting  in  each. 

As  I  understand  Mr.  Cooley's  statement,  quoted  above,  in  the 
first  subdivision  he  includes  all  acts  which  are  in  themselves 
violations  of  legal  duty,  no  matter  how  performed ;  as,  if  A  shall 
trespass  on  B  's  property,  or  convert  it  to  his  own  use.  Here  the 
whole  enterprise  is  unlawful,  and  he  has  no  right  to  do  the  thing 
he  has  undertaken. 

In  the  second  subdivision,  he  includes  those  cases  in  which  the 
general  purpose  and  enterprise  is  lawful,  and  within  the  legal 
right  of  the  person  undertaking  it,  but  in  carrying  out  this  law- 
ful purpose  he  does,  or  omits,  something  contrary  to  his  legal 
duty;  as  in  the  negligent  operation  of  a  railroad  train  on  the 
road  of  the  company.  Here  the  company  has  the  right  to  run 
the  train,  but  in  the  particular  case  under  investigation  one  of 
its  employes  does  some  act  contrary  to  his  legal  duty,  and  damage 
results.  Here  the  doing  of  the  thing  undertaken  by  the  com- 
pany, viz. :  the  running  of  the  train,  was  lawful,  but  the  manner 
in  which  it  was  done  was  unlawful. 

In  the  third  subdivision,  he  includes  omissions  of  legal  duty, 
or  ordinary  cases  of  negligence. 

My  own  ideas  on  this  subject  have  been  indicated  in  previous 
chapters.  They  may  be  briefly  stated  thus :  No  act,  or  omission, 
can  be  a  tort,  unless  it  is  a  breach  of  legal  duty.  The  respective 
legal  rights  and  duties  existing  between  any  two  persons  depend 
upon  the  conditions  of  fact,  existing  between  or  regarding  them. 
Any  act,  or  omission,  which  violates  a  non-contractual  right  of 
the  one,  and  the  correlative  legal  duty  of  the  other,  and  which 
directly  results  in  injury  to  the  one  having  the  right,  is  a  tort. 
In  the  great  majority  of  cases,  whether  or  not  the  act,  or  omis- 
sion, is  a  violation  of  legal  duty  depends  on  the  nature  of  the 
act,  or  omission,  without  reference  to  the  motive  actuating  it. 


TORTS.  539 

In  some  instances,  an  act,  or  omission,  may  be,  in  its  nature,  a 
technical  violation  of  another's  right,  yet  for  considerations  of 
public  policy  this  invasion  is  ordinarily  excused  and  not  declared 
unlawful;  but  this  excuse  will  be  withdrawn  if  the  act,  or  omis- 
sion, be  accompanied  with  an  evil  motive.  In  such  cases,  whether 
or  not  it  is  unlawful  will  be  determined  by  the  motive  actuating 
it.  When  it  is  unlawful  on  this  account,  of  course  it  becomes 
tortious,  and  the  injury  directly  resulting  must  be  compensated 
for. 

STATUS  AS  AFFECTING  PARTIES  TO  TORTS. 
The  Party  Injured. 

The  rule  of  general,  if  not  universal,  application  is:  All  per- 
sons, natural  or  artificial,  may  have  and  enjoy  legal  rights,  and 
have  redress  through  the  courts  for  violations  thereof. 

This  rule  embraces  the  Federal  and  State  Governments,  public 
municipal  corporations,  as  counties,  cities,  towns,  etc.,  private 
corporations  lawfully  organized,  or  existing  de  facto,  partner- 
ships and  natural  persons,  whether  sui  juris  or  laboring  under 
disability  in  law  or  fact,  or  both,  whether  resident,  or  nonresi- 
dent. The  only  exceptions  to  this  rule,  if  there  be  exceptions, 
are  found  in  the  case  of  an  alien  enemy,  and  certain  private  cor- 
porations: (1)  Those  which  are  not  entitled  to  protection  under 
the  Federal  Constitution,  either  on  account  of  their  own  nature, 
or  of  the  particular  transaction  out  of  which  the  litigation  arises. 
(2)  Those  which  are  forbidden  by  law  to  acquire  or  hold  prop- 
erty of  certain  designated  kinds.  But,  even  as  to  these,  their 
property  would  be  protected  by  the  State  from  unlawful  inter- 
ference by  individuals,'  and  would  only  be  subject  to  confiscation, 
forfeiture,  or  escheat  to  the  proper  government. 

The  Wrong-doer. 

Sovereignty. — The  highest  and  most  direct  representatives  of 
sovereign  power,  that  is,  the  Federal  Government  and  the  several 
State  governments,  are  immune  from  suit  for  tort,  unless  the' 
government  involved  shall  have  given  express  permission  for  the 
suit  to  be  brought.  If  it  does  give  such  permission,  it  is,  in  the 
main,  subject  to  the  same  rules  of  substantive  law  as  a  privntc 
party  would  be,  under  similar  facts. 

Counties. — Municipal   corporations  proper,  such  as  counties, 


540  AMERICAN   ELEMENTARY  LAW. 

school  districts,- etc.,  are  immune  from  suit  for  tort,  unless  there 
be  some  constitutional  or  statutory  provision  making  them  liable. 

Incorporated  Cities  and  Towns. — These  may  be  created  in  two 
ways:  (1)  By  special  charter;  (2)  under  general  incorporation 
law.  It  was  thought,  at  one  time,  that  this  made  a  difference  in 
their  liability  for  torts,  but  it  is  now  settled  that  it  does  not,  ex- 
cept in  such  special  matters  as  may  be  specifically  set  out  in  the 
special  charter  of  a  particular  city.  The  law,  as  to  these  corpo- 
rations, is  somewhat  unsettled.  The  general  doctrine  is  that,  as 
to  their  business  affairs  and  interests,  and  torts  committed  in 
connection  with  or  in  prosecution  of  these,  they  are  liable;  while 
for  wrongs  committed  in  exercise  of  their  general  governmental 
power  and  duties,  they  are  not.  Thus,  we  find  that  a  city  is  not 
responsible  for  the  illegal  acts  of  a  police  officer  in  making 
arrests,  nor  in  performing  other  acts  in  connection  with  his  office, 
nor  for  the  destruction  of  property  to  prevent  spread  of  fire. 
But  for  injuries  resulting  from  defective  conditions  of  the  streets, 
the  city  is  liable,  provided  the  defect  is  the  result  of  negligence 
on  its  part. 

Public  Officers. — Passing  from  these  public  and  quasi-public 
corporations,  we  come  to  public  officers.  These  are  persons  to 
whom  has  been  delegated  the  exercise  of  certain  governmental 
powers.  Within  the  limits  of  the  powers  thus  delegated,  they 
represent  sovereignty,  and  they  are  free  from  any  liability  for 
acts  done  lawfully,  within  the  scope  of  their  authority.  When 
they  go  beyond  this  proper  sphere  and  do,  or  attempt  to  do,  acts 
under  pretext  of  lawful  authority  which  are  not  so  in  reality, 
they  may  or  may  not  be  liable,  according  to  the  nature  and  cir- 
cumstances of  the  case.  If  the  duty  attempted,  or  pretended  to 
be  performed,  is  ministerial,  for  any  wrongful  act  or  mistake  re- 
sulting in  injury  to  another  the  officer  is  responsible.  If  the 
duty  be  not  ministerial,  but  is  one  which  requires  the  exercise 
of  official  discretion,  as  that  term  has  been  explained,  there  is  no 
liability,  unless  it  may  be  in  a  few  extreme  cases. 

Natural  Persons. — Every  normal  person  is  responsible  for  his 
own  wrongful  conduct. 

As  a  rule,  insane  persons  are  responsible  for  actual  damage 
occasioned  by  their  tortious  conduct.  In  those  exceptional  cases 
in  which  evil  motive  or  guilty  knowledge  is  an  element  of  a  tort, 


TOBTS.  541 

they  can  not  commit  them.  They  are  never  responsible  for  ex- 
emplary or  punitive  damage. 

Infante  are  responsible  for  their  torts.  When  they  are  too 
young  and  immature  to  entertain  evil  motive,  they  can  not  com- 
mit a  tort  having  such  an  element.  If,  however,  they  have  the 
mental  capacity  to  entertain  such  motive  and,  in  fact,  do  so,  they 
are  then  responsible  just  as  adults.  Parents  are  not,  as  such  re- 
sponsible for  the  torts  of  their  children. 

Married  women  are  responsible  for  torts  committed  by  them 
in  the  same  way  and  to  the  same  extent,  as  other  persons,  with 
the  single  exception  of  torts  committed  under  compulsion  of  the 
husband,  in  which  case  they  are  excused. 

Combinations  of  Natural  Persons. — Private  corporations,  in- 
cluding those  organized  for  strictly  private  purposes  and  those 
organized  for  public  purposes  prosecuted  for  private  gain,  are 
responsible  for  torts  committed  by  their  proper  representatives 
in  the  prosecution  of  their  business.  The  stock-holders,  board  of 
directors,  and  general  officers  of  a  corporation  are  practically 
considered  as  the  corporation  itself  when  acting  for  it  and  within 
the  scope  of  their  authority,  hence  the  evil  motive  of  such  par- 
ties is  regarded  as  the  evil  motive  of  the  corporation.  Subordin- 
ate officers,  agents,  and  servants  are  regarded,  not  as  the  corpo- 
ration, but  as  its  substitutes.  The  company  is  responsible  for 
their  torts  committed  within  the  scope  of  their  employment  on 
the  same  principles  and  to  the  same  extent  that  a  natural  per- 
son is  responsible  for  the  tort  of  his  agent  or  servant. 

Partnerships  are  regarded  as  liable  for  the  torts  of  any  mem- 
ber of  the  firm,  committed  within  the  scope  of  the  partnership 
business,  and  for  the  torts  of  their  agents  and  servants  just  as 
a  natural  person  would  be. 

In  joint  stock  companies,  not  incorporated,  the  management  of 
the  business  is  entrusted  to  designated  officers  and  representa- 
tives of  the  concern.  For  torts  committed  by  them  within  the 
scope  of  the  business  and  of  their  employment,  the  funds  of  the 
association  are  responsible. 

In  ordinary  combinations  for  religious,  charitable,  or  other 
nonbusiness  purposes,  the  law  does  not  recognize  the  different 
members  by  reason  of  their  membership,  as  either  agents  of  the 
concern  or  of  the  other  members,  and  for  torts  committed  by  the 


542  AMERICAN   ELEMENTARY   LAW. 

members  of  such  body  in  connection  with  the  enterprise,  only 
those  who  do  the  wrong  or  advise  or  encourage  or  receive  bene- 
fits from  it  are  held  responsible. 

Persons  among  whom  there  is  no  combination  or  general  pur- 
pose, but  who  combine  together  for  the  purpose  of  committing  a 
tort  or  a  series  of  torts,  are  regarded  simply  as  joint  tort-feasors 
and  are  responsible  as  such.  The  very  general  rule  being  that 
each  and  every  one  is  responsible  for  the  entire  damage  done  by 
all. 

For  Whose  Tortious  Conduct  One  is  Responsible. 

(1)  Every  normal  person  is  himself  responsible  for  his  own 
wrongful  conduct.  Every  one  is  responsible  for  torts  in  which 
he  joined,  or  participated.  All  are  regarded  as  participating  in  a 
tort  who  actually  join  in  it,  or  who  aid,  counsel,  or  advise  its 
commission.     This  results  from  the  doctrine  of  co-operation. 

(2)  The  husband  is  responsible  for  the  torts  of  the  wife.  This 
results  from  their  legal  identity. 

(3)  The  parent  is  not,  as  such,  responsible  for  the  tort  of  the 
child,  nor  the  child  for  the  tort  of  the  parent. 

(4)  The  master  is  responsible  for  the  tort  of  the  servant,  com- 
mitted within  the  scope  of  the  latter 's  employment.  As  between 
them  and  persons  having  notice  of  the  facts,  the  scope  of  employ- 
ment is  fixed  by  the  agreement  between  the  parties  and  the  mas- 
ter's instructions  to  the  servant  unless  the  instructions  seek  to 
free  the  master  from  duty  already  owed  by  the  master  to  the  in- 
jured person  in  which  case  they  are  of  no  effect.  As  to  other 
persons,  the  scope  of  the  employment  is  what  a  man  of  ordinary 
judgment  and  capacity  would  reasonably  conclude  it  to  be,  from 
all  the  facts  and  circumstances  of  the  case.  The  foregoing  lia- 
bility is  based  upon  the  doctrine  of  substitution.  The  master  is 
also  responsible  for  the  default  of  the  servant,  when  he  has  en- 
trusted him  with  the  discharge  of  a  duty  resting  on  the  master, 
and  the  servant  has  failed  to  perform  that  duty.  This  liability 
is  based  on  nonassignability  of  duty. 

(5)  The  rules  on  this  subject  governing  principal  and  agent 
are  the  same  as  those  between  master  and  servant. 

(6)  Independent  contractors  and  employers  are  neither  re-  , 
sponsible  to  third  persons  for  the  torts  of  the  other,  simply  by 
reason  of  their  relation.     If,  however,  they  act  with  common  un- 


TORTS.  543 

derstanding,  both  will  be  liable ;  or,  if  the  contractor  is  employed 
to  discharge  a  duty  resting  upon  the  employer,  and  fails,  both 
are  responsible. 

Damages. — In  each  of  the  cases  mentioned  above  in  which  one 
person  is  held  liable  for  the  tort  of  the  other,  the  liability  ex- 
tends to  full  compensation  to  the  injured  party  for  the  damage 
sustained.  This  is  true  whether  the  particular  tort  involve  the 
existence  of  evil  motive  or  not.  For  the  purpose  of  adjusting 
and  determining  compensation  for  actual  injury  the  law  imputes 
the  evil  motive  of  the  actual  tort-feasor  to  him  who  is  responsible 
for  the  wrongdoer's  conduct. 

When  we  pass  from  compensatory  to  exemplary  damage,  the 
rules  as  to  liability  differ.  The  general  doctrine  is  that  a  per- 
son who  has  no  actual  evil  motive  in  connection  with  the  wrong- 
doing is  not  responsible  for  exemplary  damages.    . 

To  this  rule  there  are  several  exceptions: 

(1)  The  weight  of  authority  holds  that  if  persons  co-operate 
together  in  the  commission  of  a  tort  for  the  furtherance  of  some 
joint  purpose  or  to  accomplish  any  end  desired  by  all,  the  evil 
motive  of  any  one  of  the  joint  wrong-doers  will  be  imputed  to  each 
of  his  associates  and  each  tort-feasor  will  be  held  responsible  to 
the  same  extent  as  the  most  guilty.  The  less  guilty  having  pur- 
posely co-operated  with  the  most  guilty  are  by  the  weight  of  au- 
thority placed  upon  the  same  footing  as  they. 

(2)  The  existence  of  the  wife  being  legally  merged  into  that 
of  the  husband,  her  evil  motives  are  regarded  as  his  and  he  is 
responsible  for  exemplary  damages  for  her  torts  just  as  if  com- 
mitted by  himself. 

(3)  The  master  is  not,  by  reason  of  the  relationship,  respon- 
sible for  exemplary  damages  for  torts  committed  by  the  servant 
with  evil  motive,  not  participated  in  by  tbe  master.  The  same 
is  true  as  to  principal  and  agent.  Tn  either  case,  however,  if 
the  master  or  principal  participates  in  the  evil  motive  of  his 
representative  at  the  lime  the  wrong  was  done,  or  if  subsequently , 
with  full  knowledge  of  the  facts,  he  approves  and  ratifies  the 
wrongful  conduct  of  his  representative,  he  makes  the  evil  motive 
his  own  and  is  responsible  for  exemplary  as  well  as  actual  dam- 
age. 


544  AMKRICAN   ELEMENTARY   LAW. 

For  What  Consequences  of  Conduct  Liability  Attaches. 

Each  wrongdoer  is  legally  responsible  for  all  the  injurious 
consequences  of  his  conduct  which  he  intended  to  result  there- 
from, and  also  for  those  consequences  which  a  man  of  ordinary- 
prudence  and  judgment,  situated  as  he  was  at  the  time,  would 
reasonably  have  anticipated  as  its  natural  and  probable  results. 
This  is  simply  an  application  of  the  doctrine  of  proximate  cause 
in  the  law  of  torts.  Under  it  the  intended  wrong,  however  ac- 
complished, must  be  compensated  for,  and  unintended  injuries, 
which  are  both  natural  and  probable  results  of  the  wrong,  must 
be  made  good.  In  the  case  of  intended  wrongs,  the  wrong-doer 
cannot  avoid  liability  by  saying  the  hurt  was  not  a  reasonable  or 
natural  consequence  of  his  conduct.  He  designed  to  accomplish 
the  result  and  did  so,  and  is  therefore  liable.  In  the  case  of  in- 
jury resulting  as  the  natural  and  probable  consequence  of  the 
wrong,  he  cannot  escape  liability  by  saying  that  he  did  not  in- 
tend the  hurt.  The  law  makes  it  the  legal  duty  of  every  one  to 
anticipate  the  natural  and  probable  consequences  of  his  conduct, 
and  holds  him  responsible  for  such  consequences  so  far  as  a  rea- 
sonably prudent  person,  situated  as  he  was.  would  have  fore- 
seen them.  The  law  having  imposed  the  duty  of  care  will  not 
permit  the  wrongdoer  to  escape  liability  by  proving  that  he  did 
not  comply  with  his  legal  obligation  in  that  respect. 

The  law,  however,  limits  liability  for  unintended  consequences 
to  those  which  should  have  been  foreseen  as  both  natural  and 
probable.  It  must  draw  a  line  of  separation  somewhere,  and 
practical  justice,  in  a  very  large  majority  of  the  cases,  is  sub- 
served by  including  natural  and  probable  consequences  and  ex- 
eluding  all  results  which  do  not  have  both  these  qualities. 

DISCHARGE  OF  LIABILITY  FOR  TORT. 

There  are  a  number  of  ways  in  which  liability  for  tort  may  be 
discharged.  The  most  common  of  these  are  voluntary  settlement 
between  the  parties  and  suit  and  satisfaction  of  the  judgment. 

Where  all  the  parties  interested  are  sui  juris,  they  are  as  free 
to  contract  with  regard  to  liability  for  tort  as  for  any  other  mat- 
ter. "Where  they  voluntarily  agree  upon  the  amount  of  dam- 
age and  pay  the  amount  stipulated,  the  matter  is  at  an  end.  If, 
however,  they  simply  agree  upon  the  amount  and  the  wrongdoer 


TORTS.  545 

promises  to  pay  it  in  the  future,  if  he  fails  to  pay  at  the  agreed 
time,  this  gives  the  injured  party  the  option  to  insist  on  the 
promise,  or  to  repudiate  the  agreement  and  sue  for  the  tort. 

If  there  are  a  number  of  tort-feasors,  satisfaction  in  full  by 
any  one  of  them  satisfies  the  claim  against  all.  Thus,  if  two  men 
commit  a  battery  upon  another,  and  the  injured  party  has  a  set- 
tlement with  or  sues  one  of  them  and  receives  from  him  the 
money,  either  agreed  upon  as  full  compensation,  or  adjudged  by 
the  court  as  such,  this  discharges  all  liability  on  the  part  of  both 
wrongdoers. 

All  joint  tort-feasors  are  regarded  as  liable  to  the  full  extent 
of  the  damage.  The  injured  party  may  sue  them  all  together, 
each  by  himself,  or  in  such  groups  as  he  sees  fit.  If  he  sues  them 
separately,  neither  these  suits,  nor  the  recovery  of  judgment  in 
some  of  them  will  interfere  with  the  prosecution  of  the  other 
suits.  The  plaintiff  is  entitled  to  judgment  against  each  of  the 
wrongdoers. 

The  injured  party  is,  however,  only  entitled  to  one  satisfac- 
tion. If  he  collects  in  full  any  one  of  the  judgments,  this  can- 
cels the  judgment  for  damage  in  each  of  the  other  cases.  He 
could  still  collect  the  costs  in  each  case.  The  plaintiff  has  the 
privilege  of  selecting  which  judgment  he  will  collect.  If  the 
judgments  differ  in  amount  the  tort-feasors  cannot  compel  the 
plaintiff  to  receive  payment  of  any  but  the  largest  judgment. 

Liability  for  tort  may  be  discharged  by  the  running  of  the 
statute  of  limitations,  or  by  marriage  between  the  parties,  and,  at 
Common  Law,  by  death  of  either  of  the  parties  if  the  tort  in- 
vaded a  personal  right. 

Indemnity  and  Contribution. 

Indemnity  is  payment  in  full  of  money  which  one  person  has 
paid  out  in  the  settlement  of  a  legal  demand  against  another. 
Contribution  is  partial  payment  of  money  under  such  circum- 
stances. 

The  general  rule  is  that  neither  indemnity  nor  contribution 
is  allowed  between  or  among  tort-feasors.  The  basis  of  this  rule 
is  the  old  principle  that  no  cause  of  action  arises  in  behalf  of  a 
person  on  account  of  a  legal  wrong  committed  by  him,  or  for 
which  he  is  legally  responsible.  Stated  a  little  differently,  the 
rule  is  that  the  law  does  not  undertake  to  enforce  settlement  nor 
35 


546  AMERICAN   ELEMENTARY   LAW. 

I 

adjust  accounts  growing  out  of  intentional  legal  wrongs  between 
the  wrongdoers.  Wherever  this  doctrine  is  applicable,  neither 
indemnity  nor  contribution  is  allowed. 

It,  however,  sometimes  occurs  that  none  of  the  tort-feasors 
are  intentional  wrongdoers,  and  still  more  frequently  that  some 
of  the  tort-feasors  are  guilty  of  the  actual  wrong,  while  others 
are  in  fact  innocent  of  any  personal  wrong  doing  but  are  held 
responsible  to  third  parties  on  account  of  some  relation  between 
them  and  the  wrongdoer.  Occasionally  the  actual  wrongdoer  is 
innocent  of  any  wrongful  intent,  and  is  hence  less  guilty  than 
one  who  instigated  or  caused  him  to  commit  the  wrong.  In  such 
cases  as  these  the  law  sometimes  admits  indemnity  or  contribu- 
tion according  to  the  facts  of  the  case. 

If  two  persons  buy  a  piece  of  property  in  good  faith  and  pay 
for  it,  actually  believing  the  title  to  be  good  and  take  possession 
of  it  and  the  true  owner  should  sue  one  of  them  only,  and  recover 
and  collect  damages,  the  law  would  permit  the  man  paying  tht 
damage  to  compel  the  other  party  to  contribute  his  share  of  the 
loss. 

If  a  master  employ  a  servant  and  gives  him  proper  instruc- 
tion not  to  commit  certain  wrongful  acts,  and  the  servant,  never- 
theless, does  commit  such  acts  to  the  injury  of  another  under 
such  circumstances  that  the  master  is  compelled  to  pay  the  dam- 
ages, the  law  permits  the  master  to  recover  the  entire  amount  of 
damage  from  the  servant. 

If  a  master  is  in  possession  of,  and  claims  a  piece  of  property, 
and  orders  his  servant  to  perform  some  act  upon  the  property 
which  damages  it,  as  quarrying  rock,  the  true  owner  of  the  prop- 
erty could  compel  the  servant  to  pay  him  the  full  amount  of  dam- 
age. The  command  of  the  master  and  the  good  faith  of  the  serv- 
ant would  be  no  defense  against  the  injured  third  party,  but 
under  such  circumstances,  the  servant  could  compel  the  master  to 
indemnify  him  for  the  full  amount  of  the  damage. 

These  illustrations  show  the  spirit  of  the  rule  allowing  adjust- 
ments through  the  courts  between  persons,  neither  of  whom  is 
an  intentional  wrongdoer,  and  in  favor  of  the  less  guilty  of  two 
wrongdoers,  against  the  more  guilty. 


CHAPTER  III. 

SOME  NAMED  TORTS. 

"We  will  next  consider  a  few  named  torts  which  affect  both  per- 
sonal and  property  rights,  and  then  take  up  some  affecting  each 
of  these  in  the  order  named. 

NEGLIGENCE. 

The  first  is  Negligence.  "We  have  found  that  tortious  conduct 
may  be  either  positive,  by  acts,  or  negative,  by  omissions,  that  is, 
by  the  doing  of  a  thing  forbidden  by  law,  or  failing  to  do  some- 
thing required  by  law.  The  affirmative  acts  are  so  many  and  so 
different  that  the  law  deals  with  them  under  distinct  heads  or 
names,  but  it  deals  with  a  great  many  omissions  under  the  one 
head  of  negligence. 

Definition. 

Negligence  is  frequently  defined  as,  "Failure  to  use  that  degree 
of  care  which  the  law  imposes  on  the  party,  as  a  legal  duty,  under 
all  the  circumstances  of  the  particular  case." 

This  degree  of  care  varies  with  the  different  circumstances  and 
facts  of  each  class  of  cases.  Sometimes  specific  acts  are  required ; 
in  such  case  failure  to  meet  the  requirement  is  negligence  per  se. 
or  negligence  in  law.  Most  frequently,  however,  specific  con- 
duct is  not  required,  but  the  degree  of  care  to  be  observed  is  pre- 
scribed. 

Negligence  is  used  to  cover  failures  of  legal  duty,  intended  as 
well  as  inadvertent.  This  is  true,  at  least  to  the  extent  thai  a 
charge  of  negligence  is  supported  by  proof  of  the  existence  of  a 
legal  duty  and  failure  to  perform  it,  and  the  defendant  can  not 
relieve  himself  from  liability  by  showing  that  the  wrong  was 
done  intentionally. 

The  general  standard  of  care  is  such  as  a  reasonable  and  ordi 
narily  prudent  person  would  have  observed,  under  all  the  cir 
cumstances  of  the  case.     This  varies  with  the  facts  of  each  case. 


548  AMERICAN   ELEMENTARY   LAW. 

Where  the  relations  between  the  parties  are  general,  that  is,, 
those  incident  to  ordinary  social  conditions,  a  less  degree  of  care 
is  required  between  them  than  is  in  those  eases  where  special 
relations  exist,  involving  confidence;  or  where  weakness  or  in- 
capacity on  the  part  of  one  of  the  persons  is  shown,  as  in  case  of 
the  conduct  of  an  adult  toward  young  children,  or  adults  sub- 
ject to  some  infirmity,  permanent  or  temporary,  known  to  the 
other  party;  or  in  cases  where  one  is,  for  the  time  being,  in  the 
power  and  control  of  another,  as  carrier  and  passenger,  attorney 
and  client,  doctor  and  patient,  etc.  It  is  manifest  that  an  ordi- 
narily prudent  and  reasonable  person  would  exercise  different 
degrees  of  care  under  these  different  circumstances,  and  so  the 
care  required  by  law  varies  accordingly. 

Negligence  as  Matter  of  Law  or  of  Fact. 

There  are  some  classes  of  cases  in  which  the  facts  indicate  so 
clearly  the  degree  of  care  which  a  reasonably  prudent  person 
would  use  that  the  law  itself  applies  the  standard  above  indi- 
cated, and  announces  the  result  in  a  fixed  rule  of  law.  In  all 
other  cases  the  law  announces  the  controlling  principles,  and  re- 
quires the  judge  to  instruct  the  jury  regarding  it,  and  requires 
them  to  make  the  application,  and  to  determine,  under  the  par- 
ticular facts  of  the  case,  whether  the  person  whose  conduct  is 
under  investigation  did  or  did  not  exercke  such  care  as  an  ordi- 
narily prudent  person  would  have,  under  the  same  circumstances. 
In  those  instances  in  which  the  law  has  itself  applied  the  prin- 
ciple and  announced  the  rule,  such  rule  is  controlling,  and  must 
be  obeyed  by  both  judge  and  jury.  To  illustrate :  The  law  says, 
when  one  person  places  himself  in  the  care  of  another  to  be  car- 
ried as  a  passenger  for  hire,  that  an  ordinarily  prudent  person 
acting  as  such  carrier  would  use  a  very  high  degree  of  care  for 
the  safety  of  the  passenger,  and  so  it  announces,  as  a  rule  of  law 
in  such  cases,  that  the  carrier  must  use  the  highest  practical  care 
to  secure  the  passenger's  safety. 

Again,  in  the  case  of  mature  persons  and  young  children,  com- 
mon experience  teaches  that  a  man  of  ordinary  prudence  exer- 
cises more  care  for  the  safety  of  young  children  with  whom  he 
comes  in  contact  than  he  does  as  to  adults.  The  law  recognizes 
this  practical  condition,  and  says  that  incapacity  fo  care  for 
one's  self  must  be  taken  into  account,  when  the  safety  of  young 


SOME   NAMED   TORTS.  549 

children  is  concerned,  and  will  hold  that  to  be  negligence,  in  the 
case  of  such  child,  which  would  not  be  in  case  of  an  adult. 

Sometimes  the  legislature  makes  this  application,  and  declares 
certain  acts  or  omissions  are  negligent.  Usually,  such  statutes 
are  based  upon  the  principle  we  have  been  discussing.  That  is. 
in  the  judgment  of  the  legislature,  a  reasonably  prudent  person, 
under  given  circumstances,  would  do  certain  things,  and  hence 
it  declares  that  failure  to  do  these  things  is  negligence.  Again, 
in  other  instances,  the  legislature,  without  declaring  that  certain 
acts  or  omissions  shall  be  negligence,  recognizes  the  degree  of 
care  which  would  be  used  by  a  person  of  ordinary  prudence. 
under  certain  circumstances,  and  declares,  as  a  matter  of  law, 
that  such  care  must  be  observed  by  all  persons,  under  such  cir- 
cumstances. 

More  frequently,  however,  the  degree  of  care  is  not  indicated 
or  announced  as  a  matter  of  law,  further  than  this  is  done  in 
announcing  the  general  doctrine  that  every  person  must  observe 
that  degree  of  care  for  the  safety  and  well-being  of  others  which 
a  reasonable  and  ordinarily  prudent  man  would  observe,  under 
all  the  circumstances  of  the  case,  and  then  leaving  to  the  jury  to 
say,  in  each  case,  whether  that  degree  of  care  has  been  exercised. 

In  all  cases,  the  degree  of  care  required,  whether  this  has  been 
specifically  designated  by  the  courts  or  legislature,  or  is  expressed 
in  the  general  doctrine  of  such  care  as  an  ordinarily  prudent  per- 
son would  use,  is  a  matter  of  law,  and  whether  or  not  the  re- 
quired care  has  been  used,  in  any  given  case,  is  always  a  matter 
of  fact  for  the  jury,  except  in  the  few  instances  in  which  the 
legislature  has  specifically  enacted  that  doing  an  act,  on  the  one 
hand,  and  not  doing  it,  on  the  other,  is  negligence  per  s&. 
Right  to  Contract  Against  Liability  for  Negligence. 

Many  nice  questions  arise  as  to  the  right  of  parties  to  vary, 
by  contract  between  them,  these  general  rules  as  to  the  degree  of 
care  to  be  observed  between  them  as  incidental  to  certain  rela- 
tions. In  other  words:  Will  the  law  permit  parties,  by  agree- 
ment between  them,  to  change,  as  between  themselves  and  in  re- 
gard to  certain  matters,  the  general  rules  of  law  as  to  the  care 
to  be  observed  between  them?  In  many  instances  it  will;  in 
some  instances,  from  considerations  of  public  policy,  it  will  not. 

It  is  not  unusual  to  see  expressions  in  law  books  that  a  per- 


550  AMERICAN   ELEMENTARY   LAW. 

son  is  not  permitted  to  relieve  himself,  by  contract,  from  the 
consequences  of  his  own  negligence.  This  must  always  be  taken 
in  connection  with  the  kind  of  care  under  consideration  and  the 
facts  of  the  particular  suit. 

On  the  one  hand,  we  have  cases  of  common  carriers  of  freight. 
At  Common  Law  they  are  responsible  for  the  safe  carriage  and 
delivery  of  the  goods  within  a  reasonable  time,  and  could  only  be 
relieved  from  such  responsibility  by  act  of  God,  the  public  enemy, 
inherent  vice  in  the  articles  transported,  or  wrong  by  the  shipper 
affecting  the  thing  shipped.  This  extreme  liability  at  Common 
Law  may  be  limited  to  the  point  that  it  reaches  the  carrier's 
negligence,  and  beyond  that  it  can  not  go,  a  contract  to  relieve 
a  carrier  from  the  results  of  its  own  negligence  being  absolutely 
void. 

On  the  other  hand,  the  Common  Law  permitted  persons  enter- 
ing into  the  relation  of  master  and  servant  to  make  such  modifi- 
cations of  the  ordinary  rules  as  to  care  between  them  as  they  saw 
It ;  provided  they  did  not  undertake  to  consent  to  willful  wrong, 
mere  inadvertence  could  be  contracted  against. 

Again,  in  contracts  of  fire  insurance,  the  insuror  is  never  re- 
lieved from  liability  because  the  fire  resulted  from  mere  inad- 
vertence of  the  insured.  "Willful  wrongs  of  the  insured  are  not 
covered  by  the  contract,  but  the  very  purpose  of  agreement  is  to 
cover  loss  from  carelessness. 

These  cases  illustrate  the  wide  extremes  of  the  law  on  this  ques- 
tion. 

The  practical  result  of  the  cases  seems  to  be  that  liability  for 
negligence  consisting  in  mere  inadvertence  may  ordinarily  be 
contracted  against.  In  exceptional  cases,  it  can  not.  Liability 
for  negligence  consisting  in  willful  wrong-doing  can  not  be  con- 
tracted against. 

This  practical  difference  between  inadvertence  and  willful 
wrong  is  recognized  in  other  ways:  Contributory  negligence  of 
the  injured  party,  or  of  some  one  for  whose  conduct  he  is  re- 
sponsible, will  constitute  a  complete  defense  in  cases  founded  on 
inadvertence,  but  is  never  a  defense  in  cases  of  willful  injury. 
Exemplary  damages  are  never  allowed  for  inadvertence,  unless 
it  is  so  great  as  to  evidence  gross  recklessness,  but  are  always  re- 
coverable for  willful  injuries. 


SOME   NAMED    TORTS.  551 

Remote  and  Proximate  Cause. 

As  negligence,  to  be  actionable,  must  always  be  a  breach  of 
legal  duty,  so  it  must  also  be  the  direct  and  proximate  cause  of 
the  injury  complained  of.  It  is  but  the  negative  way  of  violat- 
ing a  legal  right,  and  the  same  doctrine  as  to  remote  and  proxi- 
mate cause  and  the  natural  and  necessary  consequences  flowing 
from  it  apply  that  do  in  affirmative  torts.  It  is  not  required  that 
the  injurious  consequences  should  have  been  foreseen,  nor  that 
they  necessarily  must  have  resulted  from  the  failure  of  duty. 
It  is  sufficient  if  they  result  naturally  and  directly,  without  the 
intervention  of  any  other  independent  agency,  and  might  rea- 
sonbly  have  been  anticipated  as  a  consequence  of  the  negligence. 

If  an  independent  agency  intervene,  this  will  break  the  causal 
connection,  unless,  under  all  the  circumstances  of  the  case,  this 
intervention  itself  should  have  been  reasonably  anticipated.  The 
usual  illustration  of  this  is  the  famous  "squib"  case.  In  that 
case  one  person  threw  a  lighted  squib,  or  explosive,  into  a  crowd, 
not  caring  upon  whom  it  might  light.  The  person  on  whom  it 
fell  threw  it  from  him  onto  some  one  else,  who  in  turn  threw  it 
on  another,  until  finally  it  exploded,  and  injured  one  who  was, 
primarily,  in  no  danger  from  it.  He  sued  the  person  who  threw 
it  originally.  The  latter  pleaded  that  he  was  not  the  person  who 
threw  it  on  the  plaintiff,  and  that  his  act  did  not  bring  about  the 
injury.  The  reply  was :  ' '  But  for  your  wrongful  act,  the  injury 
would  not  have  occurred ;  and  any  reasonable  person  would  have 
foreseen  that  each  man  on  whom  the  squib  was  thrown  would 
throw  it  from  him,  and  that  such  action  was,  therefore,  within 
the  scope  of  the  consequences  which  an  ordinarily  prudent  per- 
son would  have  looked  upon  as  probably  and  naturally  resulting 
from  the  defendant's  act,"  and  he  was  held  liable. 

So,  in  this  tort,  as  in  all  others  the  wrongdoer  is  legally  liable 
for  all  the  injuries  directly  and  proximately  resulting  from  the 
wrong. 
Failure  of  Duty  Necessary  to. 

As  stated  above,  the  law  requires  every  person  to  use  such  care 
for  the  safety  and  well-being  of  others  as  an  ordinarily  prudent 
person  would  have  used,  under  all  the  circumstances  of  the  case, 
and  failure  to  use  such  care  is  negligence.  Kor  negligence  to  be 
actionable  in  behalf  of  any  particular  person,  it  must  be  a  failure 


552  AMERICAN    ELEMENTARY   LAW. 

to  perform  some  duty  due  to  him.  Often  the  same  acts  or  omis- 
sions will  be  actionable  negligence  as  to  one  person,  but  not  to 
another.  "When  this  is  true,  it  is  always  because  there  are  differ- 
ent relations  existing  between  the  parties.  The  most  frequent 
and  perhaps  the  clearest  illustration  of  this,  is  found  in  the  oper- 
ation of  a  railroad  passenger  train.  The  passengers  pay  fare  to 
be  carried  from  one  place  to  another.  The  company  undertakes 
to  carry  them  in  consideration  of  this  fare  so  received.  This 
contract  it  cannot  possibly  fulfill  without  employing  others  to 
manage  the  train,  so  it  takes  of  the  money  received  from  the  pas- 
sengers and  pays  other  persons  to  act  for  it  in  running  the  train, 
thus  enabling  it  to  meet  its  obligations.  It  is  perfectly  apparent 
that  the  relations  between  the  company  and  these  classes  of  per- 
sons are  very  different.  The  law  recognizes  these  differences, 
and  says  the  care  it  must  observe  for  the  safety  of  these  classes 
shall  be  different.  As  to  the  passengers,  as  we  have  before  stated, 
it  requires  the  highest  degree  of  practical  care ;  as  to  the  servants, 
only  ordinary  care.  Now,  it  may  readily  be  conceived  that  an 
accident  might  occur  under  such  circumstances  as  to  be  action- 
able negligence  as  to  the  passengers  which  would  not  be  such  as 
to  the  servants.  The  same  thing  is  true  as  to  the  care  of  one's 
own  premises.  The  owner  of  land  must  use  ordinary  care  not  to 
have  his  premises  in  such  a  condition  as  to  result  in  injury  to  his 
servants  or  guests,  and  if  he  does  not  do  this,  and  injury  results 
to  such  a  person,  he  is  responsible.  But  he  does  not  owe  this  same 
duty  to  trespassers,  and  if  one  unlawfully  comes  on  his  premises 
and  is  injured  there,  he  can  not  recover,  unless  he  can  show  such 
extreme  neglect  and  indifference  as  to  be  equivalent  to  willful 
injury. 

Contributory  Negligence. 

This  is  negligence  on  the  part  of  the  person  injured,  combin- 
ing with  the  negligence  of  the  party  complained  of,  and  directly 
and  proximately  contributing  to  the  injury.  The  test  of  negli- 
gence here  is,  the  same  as  applies  to  the  conduct  of  the  party 
complained  of;  that  is,  it  is  a  failure  to  use  that  degree  of  care 
for  one's  own  safety  which  a  person  of  ordinary  prudence  would 
have  used,  under  the  circumstances  of  the  case. 

It  is  a  complete  defense  against  injuries  inflicted  by  simple 


SOME   NAMED   TORTS.  553 

negligence.    It  does  not,  however,  constitute  a  defense  against  a 
willful  wrong. 

As  a  party's  conduct  is  to  be  judged  by  all  the  facts  and  cir- 
cumstances of  the  case,  it  follows  that,  if  the  wrong  of  the  party 
complained  against  has  put  the  complaining  party  in  a  position 
of  real  or  apparent  peril,  the  conduct  of  the  complainant  is  to 
be  judged  by  those  circumstances ;  and,  also,  the  frailty  of  human 
judgment  is  to  be  taken  into  account,  and  he  is  not,  under  such 
circumstances,  to  be  barred  from  a  recovery  because  he  did  not 
act  as  coolly  and  deliberately  as  he  would  have  under  other  cir- 
cumstances. He  is  required  to  do  only  what  a  reasonably  prud- 
ent man  would  have  done,  under  the  facts  as  they  reasonably  ap- 
peared to  him. 

Imputed  Negligence. 

This  is  negligence  of  one  person  imputed  or  charged  up  to 
another. 

We  have  discussed  the  principles  on  which  one  person  is  legally 
liable  for  the  conduct  of  another.  These  rules  apply  here.  The 
master  is  responsible  for  the  negligence  of  his  servant  in  the  con- 
duct of  his  business ;  the  same  is  true  of  principal  and  agent.  Of 
course,  it  must  be  negligence  within  the  real  or  apparent  scope 
of  his  authority.  Ordinarily,  the  husband  is  responsible  for  the 
negligence  of  the  wife,  on  the  principles  already  discussed.  The 
parent,  as  such,  is  not  responsible  for  the  negligence  of  the  child, 
nor  the  child  for  the  parent. 

The  negligence  of  each  joint  tort-feasor  is  imputed  to  all  the 
others  if  the  facts  are  such  that  the  omission  comes  within  the 
scope  of  the  common  enterprise.  This  doctrine  also  applies  as 
to  contributory  negligence;  and  if  one  for  whose  conduct  the 
injured  party  is  responsible  be  guilty  of  contributory  negligence, 
this  defeats  the  liability. 

It  has  been  held  that  the  negligence  of  the  husband  contributing 
to  the  injury  of  the  wife  will  ordinarily  defeat  her  right  to  re- 
covery, though  his  joinder  with  another  in  an  intentional  wrong 
against  her  will  not. 

Contributory  negligence  of  a  servant  will  defeat  recovery  by 
the  master;  common  or  private  carriers  for  hire  are  not  servants 
of  their  passengers,  and  if  they  are  guilty  of  such  conduct  as  to 


554  AMERICAN   ELEMENTARY   LAW. 

constitute  contibutory  negligence,  unless  it  is  participated  m  by 
the  injured  party,  it  will  not  defeat  recovery  by  him. 

Remedies. 

Remedies  for  negligence  are  adapted  to  the  particular  case. 
The  law  enjoins  the  use  of  care  both  as  to  the  persons  and  the 
property  of  others.  "Whenever  the  legally  required  care  is  not 
used  and  injury  directly  results,  whether  it  be  to  person  or  prop- 
erty, appropriate  remedy  will  be  awarded.  In  the  great  majority 
of  cases  this  remedy  will  be  moneyed  compensation  for  the  hurt 
sustained.  If  the  injury  is  to  property  the  amount  is  not  usually 
difficult  to  ascertain.  If  the  thing  be  entirely  destroyed  the  or- 
dinary measure  is  its  fair  market  value  at  the  time  and  place  of 
its  destruction.  If  it  be  not  entirely  destroyed,  but  injured,  the 
measure  ordinarily  is  the  difference  in  the  fair  market  value  of 
the  thing  in  the  condition  in  which  it  was  before  it  was  hurt  and 
after  the  injury  with  reasonable  compensation  for  extra  care  and 
expense  made  necessary  by  the  hurt. 

If  the  injury  is  to  the  body,  wages  for  the  time  absolutely  lost 
and  compensation  for  the  diminished  wage  earning  capacity  in 
the  future,  if  any,  and  for  physical  pain,  mental  suffering,  and 
the  expense  reasonably  incident  to  the  injury,  such  as  medical  ex- 
penses, etc.,  are  allowed.  The  weight  of  authority  is  against  al- 
lowing damages  for  hurt  to  the  mind  occasioned  by  negligence  un- 
less it  is  accompanied  by,  or  results  from,  or  produces  physical 
hurt. 

In  some  instances,  in  which  the  negligent  conduct  has  resulted 
in  establishing  injurious  conditions  continuing  in  their  nature, 
the  law  will  either  allow  compensation  for  the  future  hurt  or  issue 
an  injunction  requiring  a  change  of  the  conditions.  This  is  fre- 
quently illustrated  by  negligent  construction  of  railroad  tracks 
and  embankments.  In  cases  of  this  sort,  the  court  not  infre- 
quently awards  damage  for  the  injury  already  sustained  and  re- 
quires a  change  in  the  roadbed  so  as  to  obviate  future  injury. 

NUISANCE. 
Definition. 

A  number  of  definitions  from  different  authors  will  be  given. 
Blackstone:  "Anything  that  worketh  hurt,  inconvenience,  and 
damage.     Anything  done  to  the  hurt  or  annoyance  of  the  lands, 


SOME   NAMED   TORTS.  555 

tenements  or  hereditaments  of  another.  •  •  •  And,  by  con- 
sequence, it  follows  that  if  any  one  does  any  act,  in  itself  lawful, 
which  being  done  in  that  place  necessarily  tends  to  the  damage  of 
another 's  property,  it  is  a  nuisance,  for  it  is  incumbent  on  him  to 
find  some  other  place  to  do  that  act,  where  it  will  be  less  offensive. 
To  constitute  a  nuisance,  it  is  not  necessary  that  the  annoyance 
should  be  of  a  character  to  endanger  health;  it  is  sufficient  if  it 
occasions  that  which  is  offensive  to  the  senses,  and  which  renders 
the  enjoyment  of  life  and  property  uncomfortable.  Even  that 
which  does  but  cause  a  well-founded  apprehension  of  danger  may 
be  a  nuisance." 

Cooley :  "An  actionable  nuisance  may  be  defined  to  be  anything 
wrongfully  done,  or  permitted,  which  injures  or  annoys  another 
in  the  enjoyment  of  his  legal  rights." 

Bishop :  "  A  nuisance  of  the  sort  which  is  to  be  redressed  at  the 
suit  of  the  injured  party  is  anything  done  on  one's  premises,  or 
elsewhere,  or  put  into  circulation,  or  omitted  to  be  done,  contrary 
to  legal  duty,  wherefrom,  through  the  separate  action  of  nature, 
or  the  common  course,  an  injury  follows  to  or  directly  menaces 
another.  Or  it  is  any  public  nuisance  which  has  wrought  a  spe 
cial  wrong  to  the  individual." 

Jaggard :  "Nuisance  is  a  distinct  legal  wrong  consisting  of  any- 
thing wrongfully  done,  or  permitted,  which  interferes  with  or 
wrongfully  annoys  another  in  the  enjoyment  of  his  legal  rights/' 

Pollock:  "Nuisance  is  the  wrong  done  to  a  man  by  unlawfully 
disturbing  him  in  the  enjoyment  of  his  property,  or,  in  some  cases, 
in  exercise  of  common  right.  The  wrong  is,  in  some  respects, 
analogous  to  trespass,  and  the  two  may  coincide,  some  kinds  of 
nuisances  being  also  continuing  trespass.  The  scope  of  nuisance, 
however,  is  wider.  The  conception  of  a  private  nuisance  was 
formerly  limited  to  injuries  clone  to  a  man's  freehold  by  a  neigh- 
bor's act;  stopping  or  narrowing  rights  of  way  and  flooding  lands 
by  the  diversion  of  watercourses  seem  to  have  been  the  chief  spe- 
cies. In  the  modern  authorities,  it  includes  all  injuries  to  an 
owner  or  occupier  in  the  enjoyment  of  the  property  of  which  he 
is  in  possession,  without  regard  to  the  quality  of  his  tenure." 

Addison:  "In  legal  parlance,  a  nuisance  may  be  said  to  he  any 
obstruction  to  or  injury  of  the  legal  rights  of  another  resulting 
from  the  wrongful  or  unlawful  enjoyment  by  one  of  his  own  prop- 


556  AMERICAN   ELEMENTARY   LAW. 

erty,  real  or  personal,  or  from  his  own  unlawful  or  indecent  per- 
sonal conduct.  Such  injuries  always  arise  as  a  consequence  of  an 
act  done  outside  the  property  injured,  and  never  from  a  direct 
forcible  act ;  injuries  arising  from  a  direct  forcible  act  of  a  person 
amount  to  trespass,  and  can  only  be  compensated  for  by  an  action 
of  trespass ;  but  when  a  man  does  that  upon  his  own  premises,  or 
upon  public  property,  that  results  in  injury  to  another  as  a  direct 
and  immediate  consequence  of  such  act  by  the  invasion  of  some 
legal  right  of  another,  the  act  constitutes  a  nuisance,  and  is  com- 
pensable only  in  an  action  on  the  case.  Thus,  if  a  man  erects  a 
dam  across  a  stream  that  flows  through  his  land,  and  thereby 
raises  the  water  of  the  stream  so  as  to  flow  the  land  of  those 
above  him  on  the  stream,  this  is  an  invasion  of  the  legal  rights  of 
such  supra-riparian  owner  as  constitutes  a  nuisance,  or  so  as  to 
cut  off  its  natural  drainage.  *  •  *  So,  if  a  person  turns  the 
surface  water  of  a  stream  from  his  premises  so  that  it  escapes  over 
the  lands  of  another  in  a  different  manner  from  which  it  would 
naturally  go ;  or,  if  he  carries  on  a  noxious  trade  on  his  premises 
whereby  the  air  that  floats  over  another's  land  is  corrupted  so  sen- 
sibly as  to  impair  its  comfortable  enjoyment.  Thus,  it  will  be 
seen  that  the  term  nuisance  covers  only  that  kind  of  injuries  that 
result  from  a  use  of  one's  premises  that  thus  invade  the  legal 
rights  of  another  not  as  a  direct  act,  but  as  the  result  of  an  act." 

Wood:  "Nuisances  arise,  as  has  been  before  stated,  from  a  mis- 
use of  property,  real  or  personal,  or  from  a  person 's  own  improper 
conduct. 

"  But  the  idea  of  nuisance  is  generally  associated  with,  and  more 
commonly  arises  from,  the  wrongful  use  of  real  property.  It  is 
only  in  special  and  infrequent  instances  that  it  arises  otherwise, 
which  will  be  referred  to  and  fully  explained  later.  They  are 
always  injuries  that  result  as  a  consequence  of  an  act  done  outside 
of  the  property  injured,  and  are  the  indirect  and  remote  effects 
of  an  act,  rather  than  a  direct  and  immediate  consequence.  It  is 
a  species  of  invasion  of  a  person 's  premises  by  agencies  operating 
entirely  outside  of  the  property  itself,  and  imperceptible  and  in- 
visible, except  in  the  results  produced,  which  are  often  themselves 
invisible,  and  whose  presence  at  times  is  perceivable  by  one  of  the 
senses,  and  that  usually  not  by  the  sight.  A  trespass  is  a  direct 
and  visible  invasion  of  one's  property,  producing  direct  and  im- 


SOME   NAMED   TORTS.  557 

mediate  results,  and  consisting,  usually,  of  a  single  act;  but  in- 
juries of  the  class  mentioned  are  indirect,  and  the  consequences  of 
a  wrongful  act,  and  continuous,  and  the  fact  of  their  continuous- 
ness  is  one  of  the  many  reasons  that  make  them  a  nuisance." 

From  these  and  other  authorities  the  following  definition  is 
suggested : 

An  act,  or  omission,  not  in  itself  or  its  result  a  forcible  invasion 
of  another's  rights,  either  of  person  or  property,  but  which  brings 
about  a  condition  of  things  which,  by  the  operation  of  natural 
laws  and  forces,  proximately  occasions  a  violation,  actual  or  immi- 
nent, of  another's  legal  rights  in  the  use  and  enjoyment  of  his  per- 
son or  property. 

Analyzing  this  we  find  following  elements : 

(1)  Act  or  omission.     Affirmative,  doing;  passive,  omitting. 

(2)  Is  not  a  trespass  or  direct  invasion,  no  application  of 
physical  force,  as  that  term  is  commonly  understood. 

(3)  Establishes  conditions,  which  under  operation  of  natural 
laws,  work  an  injury  to  another,  or  seriously  threaten  to  do  so  in 
the  enjoyment  of  his  personal  property. 

(4)  The  injury  may  be  either  to  the  person,  affecting  health, 
or  comfort,  as  bad  odors  or  noises;  or  to  the  morals,  as  a  disor- 
derly house ;  or  to  property,  by  rendering  it  unfit  for  use,  and  thus 
lessening  its  enjoyment  and  value.  It  may  be  either  existing  or 
imminent. 

Nature  of  the  Injury. 

As  the  act  usually  is  not  one  involving  a  direct  application  of 
physical  force,  the  disturbance  is  usually  in  the  use  and  enjoy- 
ment, and  not  of  the  possession.  Whether  any  particular  act,  or 
omission,  having  this  result  is  a  nuisance  is  dependent  on  the  law's 
recognition  of  the  complainant's  rights. 

Names  are  a  secondary  matter ;  it  is  substance  which  should  be 
regarded.  There  are  some  instances  of  overlapping  in  the  use  of 
legal  terms,  here  as  in  many  other  cases;  this  is  comparatively 
unimportant. 

In  technical  strictness,  one  has  no  right  to  interfere,  in  any  way 
or  to  any  extent,  with  the  person  or  property  of  another;  but,  as 
this  rule  would  practically  cut  off  all  social  intercourse  and  throw 
every  one  back  upon  himself  for  all  he  had  and  for  the  supplying 
of  all  his  wants,  it  would  destroy  the  conditions  which  the  law  is 


558  AMERICAN   ELEMENTARY   LAW. 

made  to  regulate.  It  is  never  enforced  to  its  fullness,  nor  carried 
to  its  logical  results.  The  result  is  a  number  of  adjustments, 
more  or  less  systematic  in  their  nature,  yet  far  from  entirely  scien- 
tific or  uniform.  These  are,  in  the  main,  the  result  of  the  efforts 
to  do  practical  justice  in  individual  cases  varying  widely  in  their 
facts  and  environment,  and  decided  by  judges  widely  separated 
from  each  other  in  time  and  locality,  and  differing  in  education, 
judgment,  and  sympathy,  and  the  wonder  is  that  the  confusion  is 
not  greater  even  than  it  is. 

"We  have  seen  that  even  in  the  forcible  entry  and  destruction  of 
one's  property  the  law  gives  license,  if  the  emergency  demands  it. 
One  person  may  enter  upon  the  land  of  another  to  obtain  a  van- 
tage point  from  which  to  fight  a  fire  on  the  premises  of  a  third 
party,  and  he  thereby  incurs  no  liability.  He  may  even  tear 
down  and  destroy  the  property  of  another,  if  necessary  to  prevent 
the  spread  of  a  fire.  So  one  could  kill  a  horse  or  dog  of  another 
affected  with  hydrophobia  and  incur  no  liability. 

This  right  of  doing  that  which  damages  another  to  protect  the 
public  interests,  or,  in  some  instances,  greater  injury  to  private 
parties,  is  not  confined  to  any  one  person.  It  exists  in  every  one, 
and  constitutes  one  of  the  limitations  which  the  law  recognizes 
upon  the  generally  protected  right  of  exclusive  ownership  and  do- 
minion. 

Again,  as  to  the  person,  the  law  licenses  such  invasion  of  the 
technical  right  of  immunity  from  interference  as  is  involved  in 
the  ordinary  contacts  of  social  life. 

These  same  principles  are  recognized  and  applied,  with  more  or 
less  consistency  and  uniformity,  in  regard  to  those  rights  which 
are  usually  affected  by  nuisances. 

Take,  for  instance,  the  right  of  quiet  and  repose.  In  strict- 
ness, it  might  be  said  that  no  one  should  be  permitted  to  invade 
his  neighbor's  premises  with  any  sound  whatever;  that  the  mak- 
ing of  any  noise  on  the  premises  of  another,  or  so  near  thereto 
that  the  sound  would  reach  to  it.  so  as  to  be  audible  to  the  human 
ear,  would  be  a  disturbance  of  his  ether,  or  whatever  the  medium 
through  which  sound  is  transmitted.  Technically,  this  is  true,  yet 
it  is  a  scientific,  physical,  and  practical  impossibility  for  one  to 
live  at  all  under  such  limitations.  Some  adjustment  must  be 
made,  and  the  practical  question  is:  "Where  shall  the  line  be 


SOME   NAMED   TORTS.  559 

drawn?  As  the  use  of  one's  own  property  in  any  way  neces- 
sarily involves  some  disturbance  of  the  rights  of  others  in  their 
property,  how  far  shall  the  active  disturbance  be  allowed  to  go 
before  it  becomes  a  legal  invasion  ? 

No  answer  of  universal  application  has  yet  been  given.  The 
most  usual  expression  is  found  in  the  old  maxim  that  each  shall 
so  use  his  own  as  not  to  injure  another.  This,  to  a  large  degree, 
shifts  the  inquiry  to  what  is  meant  by  injure;  and  this,  in  turn, 
is  made  to  depend  on  the  facts  of  each  particular  case,  judged  in 
the  light  of  analogous  cases.  Notwithstanding  this  general  uncer- 
tainty, there  are  some  doctrines  fairly  well  settled  as  to  particular 
wrongs  of  this  nature. 

We  will  consider  some  of  these,  and  attempt  to  discover  these 
rules  in  the  particular  instances,  and  then,  if  practicable,  to  de- 
duce from  them  the  principles  common  to  them  all,  if  there  be  any 
such. 

Natural  Conditions  Not  Nuisances. — The  first  of  these  is  that 
the  injurious  condition,  to  be  a  nuisance,  must  result  from  the  act 
of  man ;  that  is,  a  condition  which  is  purely  natural  is  not  an  ac- 
tionable nuisance.  Thus,  if  one  owns  a  swamp  which  is,  in  its 
natural  state,  unhealthy  and  injurious  to  the  adjacent  property, 
he  is  not  legally  liable,  even  though  he  could  drain  it  and  relieve 
the  situation  at  small  expense;  unless  he  or  his  predecessors  in 
estate  have  done  some  act  to  increase  or  augment  the  naturally 
bad  state  of  affairs,  he  is  not  liable.  If,  however,  the  owner  has 
done  anything  to  aggravate  the  natural  conditions,  then  he  is  re- 
sponsible for  the  whole  of  any  damage  afterward  occurring. 

Must  Interfere  With  Ordinary  Person. — Another  rule  is  that 
the  annoyance  or  inconvenience  must  be  of  such  a  nature  as  to 
affect  the  average  or  ordinary  person ;  an  odor  or  noise  may  be  a 
real  annoyance  to  a  person  of  extremely  sensitive  nature,  which 
an  ordinary  person  would  look  upon  as  one  of  the  ordinary  inci- 
dents of  life.  This  is  not  true  when  health  is  involved,  but  only 
in  those  cases  in  which  the  act  or  omission  is  one  of  annoyance  or 
inconvenience  simply.  This  is  a  combination  of  the  two  legal 
rules,  that  the  law's  standard  of  measure  is  the  average  man,  and 
that  the  law  does  not  take  cognizance  of  little  things. 

Injury  Must  Be  Direct  Result  of  Wrong. — Another  of  these 
rules  is  that  the  annoyance  or  injury  must  be  the  direct  and  proxi- 


560  AMERICAN  ELEMENTARY  LAW. 

mate  result  of  the  acts  or  omissions  complained  of.  Sometimes 
there  is  some  difficulty  in  applying  this  doctrine.  As  the  act  com- 
plained of' is  not  in  itself  an  invasion  of  another's  right  of  person 
or  property,  it  is  sometimes  perplexing  to  see  how  we  can  call  the 
annoyance  a  direct  result.  An  examination  of  the  definition  will 
be  helpful  here.  A  nuisance  is  an  act,  or  omission,  which,  though 
not  directly  an  invasion  of  another's  rights,  brings  about  such  a 
condition  of  affairs  as,  by  operation  of  natural  forces,  works  an 
injury.  Every  one  is  supposed  to  regard  the  laws  of  nature 
in  making  his  calculations  as  to  probable  results  of  his  conduct, 
and  as  nuisances  result  from  his  conduct  operated  upon  by  nat- 
ural laws,  they  are,  legally  speaking,  the  direct  and  proximate 
effect  thereof.  So  these  cases  are  no  exception  to  the  general 
rules  as  to  remote  and  "proximate  cause. 
Nuisances  in  Water,  Light  and  Air. 

As  nuisances  are  usually  committed  off  the  premises  affected 
by  them,  they  most  frequently  affect  one 's  rights  in  water,  light, 
and  air.  These  are  by  no  means  the  only  methods,  but  they  are 
the  most  frequent.  We  have  considered  water  rights,  and  so  pass 
them  by.  No  one  has  any  ownership  in  natural  air  or  light. 
They  are  the  free  gift  of  nature  to  all  men,  and  all  the  right  which 
one  has  in  them  is  to  use  them.  But  this  right  is  invaded  when- 
ever the  air  is  so  polluted  with  disagreeable  odors  or  smoke  as  to 
make  it  unhealthy  or  to  render  its  use  really  annoying  to  the  man 
of  ordinary  sensibilities;  and  so,  also,  with  light.  The  air  may 
be  so  beclouded  with  smoke  or  cinders  that  it  will  obstruct  the 
passage  of  light.  If  this  is  so,  it  will  be  a  nuisance.  The  differ- 
ence between  raising  an  obstruction  on  one's  land,  so  as  to  pre- 
vent the  passage  of  light  and  air  over  it  to  the  premises  of  another. 
and  polluting  the  air  on  one's  premises  and  then  permitting  it  to 
pass  off  in  this  injured  conditions  to  the  land  of  another,  is  to  be 
kept  in  mind.  The  former,  ordinarily,  is  not  a  nuisance.  The 
latter  always  is,  if  the  pollution  be  sufficient  to  produce  ill  health, 
or  material  annoyance.  The  doctrine  of  ancient  lights  does  not 
obtain  in  most  of  the  States ;  and  one,  by  maintaining  a  window 
near  the  boundary  line  of  another's  land,  does  not  acquire  a  pre- 
scriptive right  to  continue  it.  The  reason  given  in  the  case,  and 
it  certainly  seems  conclusive,  is  that,  as  the  maintenance  of  win- 


SOME   NAMED   TORTS.  56] 

dows  is  not  a  violation  of  the  rights  of  the  adjacent  owner,  and 
he  can  not,  therefore,  bring  any  suit  for  closing  them  or  to  pre- 
vent their  continuance,  no  failure  to  do  that  which  he  was  not 
legally  capacitated  to  do  could  justly  be  regarded  as  acquiescence 
on  his  part. 

Rights  of  TJa.y. 

Eights  of  way  which  one  person  has  over  the  lands  of  another 
are  not  rights  of  possession.  "While  the  person  having  the  ease- 
ment may  pass  along  the  way  in  the  manner  and  for  the  purposes 
covered  by  the  right,  he  has  no  legal  right  to  stop  and  occupy  it  or 
to  interfere  in  any  way  with  the  owner's  use  of  it,  so  long  as  such 
use  does  not  obstruct  his  lawful  passage.  Obstructions  to  such 
ways  are,  therefore,  usually  classified  as  nuisances.  They  usually 
lack  the  element  of  direct  physical  force  which  is  essential  to  tres- 
pass. 

Ways  may  be  created  by  many  different  methods. 

Public  ways  are,  with  us,  usually  acquired  by  voluntary  grant 
by  the  owner  of  the  estate,  or  by  the  exercise  of  the  power  of  emi- 
nent domain. 

Private  ways  are  acquired  by  grant;  actual,  as  in  case  of  ex- 
press agreement;  or  presumed,  as  in  case  of  prescription;  or  by 
necessity,  as  where  a  person,  owning  a  large  tract  of  land,  sells  to 
another  a  smaller  tract  from  its  interior.  Here,  in  the  absence 
of  any  agreement,  the  law  entitles  the  purchaser  to  a  passway  to 
and  from  his  land  over  that  of  his  vendor.  Primarily,  the  vendor 
has  the  right  to  lay  out  or  designate  the  way,  but  he  must  do  this 
in  a  reasonable  manner  and  in  a  reasonable  time.  If  he  does  not 
do  so,  then  the  vendee  can  select  a  suitable  way.  This  he  must 
do  with  due  regard  to  the  rights  and  convenience  of  the  vendor. 
It  has  been  questioned  whether  the  vendor  who  owns  a  large  tract 
and  sells  all  of  it  but  a  small  portion,  which  is  surrounded  by  the 
portion  sold,  has  this  same  right,  but  I  believe  it  is  now  settled 
that  he  has.  It  is  immaterial  how  the  way  be  acquired ;  if  it  be 
once  lawfully  established,  it  must  be  respected  by  all  persons,  and 
any  obstruction  or  interference  with  it  is  an  actionable  nuisance. 
In  these  cases  the  remedy  is  for  damages  for  past  injuries,  and 
usually  injunction  against  further  maintenance  of  the  nuisance. 
36 


562  AMERICAN   ELEMENTARY   LAW. 

TORTS  VIOLATIVE  OP  BODILY  RIGHTS. 

As  we  found  in  our  study  of  these  rights,  much  attention  is 
given  to  the  protection  of  the  body.  As  then  stated,  the  general 
rule  of  law  is  that  the  application  of  force  by  one  person  to  the 
body  of  another  is  unlawful ;  but  there  are  five  exceptions  to  this 
rule:  (1)  "When  done  in  obedience  to  the  law;  (2)  when  some  spe- 
cial relation  exists  between  parties  justifying  the  act;  (3)  when 
by  consent  or  license;  (4)  when  it  is  an  inevitable  accident; 
(5)  when  in  necessary  and  proper  defense  of  the  person  or  prop- 
erty. If,  therefore,  force  is  applied  to  the  body  of  another  and 
does  not  come  under  one  or  the  other  of  these  exceptions,  it  is 
unlawful  and  tortious,  and  for  injuries  resulting  action  may  be 
maintained.  A  great  many  of  the  injuries  inflicted  upon  the 
body  are  caused  by  negligence,  and  some  of  them  by  nuisance; 
these  need  be  no  further  considered.  Some  other  forms  of  injury 
are  so  frequent  that  they  have  been  classified  and  named.  Some 
of  these  we  will  now  take  up. 

Assault  and  Battery. 

The  essential  elements  of  the  tort  are  the  same  as  those  of  the 
crime  of  the  same  name.  A  battery  is  the  use  of  any  unlawful 
violence  upon  the  person  of  another  with  the  intent  to  injure  him. 
Any  attempt  to  commit  a  battery,  coupled  with  the  present  ability 
to  do  so,  is  an  assault.  The  intent  to  injure  distinguishes  this 
from  negligence,  and  the  element  of  force  distinguishes  it  from  a 
nuisance.  The  word  unlawful  takes  it  out  of  the  exceptions  we 
have  just  considered.  It  is  immaterial  how  slight  or  how  great 
the  force,  if  the  intent  be  to  injure,  the  act  is  wrongful,  and  the 
injured  party  may  maintain  an  action.  As  this  tort  is  always 
accompanied  by  an  evil  intent,  both  compensatory  and  exemplary 
damages  may  be  recovered. 

False  Imprisonment. 

False  imprisonment  is  also  a  tort  affecting  the  body.  It  con- 
sists in  the  unlawful  detention  of  a  person  against  his  will  by 
force,  threats,  or  fraud,  thus  preventing  his  regulating  and  con- 
trolling his  movements  as  he  sees  fit,  subject  to  the  just  rights  of 
others.     Most  frequently,  this  tort  is  committed  under  the  guise 


SOME   NAMED   TORTS.  563 

of  official  authority.  It  frequently  is  occasioned  by  mistake  in 
the  identity  of  the  person  whom  an  officer  is  commissioned  to  ar- 
rest, so  that  the  officer  having  authority  to  arrest  A,  by  mistaking 
B  for  A,  arrests  B.  Here  the  officer  has  detained,  and,  it  may  be, 
has  actually  imprisoned  B,  when  his  authority  was  to  arrest  A. 
He  had  legal  authority  to  do  one  thing,  and  does  another.  He  is 
responsible. 

Malicious  Prosecution. 

Closely  connected  with  wrongs  of  the  last  kind  is  another  tort, 
known  as  malicious  prosecution.  This  is  maliciously  instituting 
a  prosecution  or  suit  against  another  without  probable  cause,  and 
causing  his  arrest  or  the  seizure  of  property  belonging  to  him. 
In  false  imprisonment,  the  prosecution  may  be  properly  begun 
against  a  guilty  party,  but  in  the  progress  of  the  litigation  some 
one,  not  really  the  defendant,  is  arrested  and  imprisoned.  In 
malicious  prosecution,  the  institution  of  the  suit  is  wrongful, 
prompted  by  malice  and  begun  without  probable  cause.  The  ma- 
chinery of  the  law  is  wrongfully  put  in  operation  against  one  who 
is  innocent,  and  whose  innocence  is  known  to  the  instigator  of  the 
suit.  In  the  case  of  false  imprisonment,  the  person  who  properly 
began  the  proceeding  against  a  guilty  party  is  not  responsible  for 
the  subsequent  mistake  by  the  officer  in  misunderstanding  the 
writ  and  arresting  an  innocent  person.  The  officer  alone  is  re- 
sponsible ;  in  malicious  prosecution,  the  proceeding  is  begun  in  the 
due  form  of  law,  and  the  process  in  the  hands  of  the  officer  com- 
mands the  doing  of  the  very  thing  he  has  done.  The  officer  is 
not  responsible.  The  wrong  lies  further  back,  with  him  who  ma- 
liciously and  without  cause  instituted  the  prosecution.  He  is 
the  tort-feasor.  While  the  institution  of  the  prosecution  mali- 
ciously, without  probable  cause,  and  the  arrest  of  the  party,  are 
the  gist  of  this  tort,  yet,  from  considerations  of  public  policy,  the 
law  requires  that,  in  order  to  complete  the  right  of  action  for  this 
wrong,  the  prosecution  must  have  ended  and  resulted  in  the  ac- 
quittal of  the  party  claiming  injury.  This  is  based  upon  two 
grounds :  (1)  because  it  is  not  desirable  to  have  two  suits  pending 
at  the  same  time,  involving  the  same  issues;  (2)  because,  if  the 
first  suit  should  be  decided  against  him,  it  would  be  conclusive 
evidence  that  there  was  probable  cause  to  believe  him  guilty. 


564  AMERICAN   ELEMENTARY   LAW. 

Poisoning. 

Poisoning  is  another  method  of  inflicting  injury  to  the  body. 
If  this  be  done  intentionally  or  negligently,  and  results  in  injury, 
it  is  a  tort. 

DEFAMATION. 
Definition. 

Defamation  is  the  publication  of  a  false  statement  reasonably 
calculated  to  injure  concerning  another  without  legal  excuse. 
Publication. 

Publication  is  conveying  an  idea  to  some  one  or  more  third  par- 
ties. So  long  as  the  idea  is  communicated  only  to  the  person 
defamed  it  is  not  a  tort,  for  he  is  not  supposed  to  be  deceived  or 
misled  by  the  statement.  But  conveying  the  idea  to  any  other 
individual  is  publication.  This  word  has  a  different  meaning 
here  from  what  it  does  when  we  speak  of  the  publication  of  a 
newspaper  or  book.  There  it  signifies  getting  it  into  proper  form 
and  offering  it  to  the  public.  Here  communication  to  any  third 
party  is  sufficient. 

It  also  has  a  different  meaning  from  that  given  to  the  word  in 
criminal  law,  which  includes  communications  not  only  to  third 
persons  but  also  to  the  party  defamed. 

Publication  may  be  accomplished  in  many  ways.  Any  method 
is  sufficient  which  actually  communicates  the  defamatory  idea  to 
a  third  person.  When  permanent  means,  such  as  printing,  writ- 
ing, painting,  etc.,  are  adopted,  the  publication  is  usually  desig- 
nated as  a  libel.  When  transitory  means,  such  as  speech,  etc., 
are  used,  the  publication  is  called  slander. 

Nature  of  the  Idea  Conveyed. 

As  publication  is  usually  made  by  written  or  spoken  words,  we 
most  frequently  find  it  referred  to  as  a  statement.  To  make  a 
statement  tortious  it  must  have  two  elements:  It  must  be  rea- 
sonably calculated  to  injure,  or  must  be  designed  to  and  actually 
accomplish  that  result,  and  it  must  be  false.  Considering  these 
two  more  in  detail,  we  find:  That  usually  the  words  used  are 
to  be  taken  in  their  ordinary  meaning,  and,  if  when  so  taken,  they 
reasonably  tend  to  bring  one  into  disrepute,  they  are  deemed  de- 
famatory. If  the  words,  used  in  their  ordinary  and  accustomed 
meaning,  are  not  defamatory,  they  are  not  actionable,  unless  the 
party  using  them  designed  that  they  should  be  understood  in  a 


SOME  NAMED   TORTS.  565 

special  sense  which  was  defamatory,  and  they  were  in  fact  so  un- 
derstood by  some  other  party.  In  this  case,  the  result  is  design- 
edly and  actually  to  communicate  a  defamatory  statement,  and 
that  is  all  that  is  required.  If,  however,  the  person  using  the 
words  intended  them  in  their  ordinary  and  harmless  meaning,  and 
the  person  to  whom  they  were  addressed,  or  some  one  else  who 
heard  them,  put  upon  them  a  peculiar  and  unusual  interpretation 
and  thus  made  them  defamatory,  this  would  not  be  laid  to  the 
charge  of  the  innocent  user.  We  find  illustrations  of  this  in 
cipher  dispatches.  They  convey  no  idea  to  the  one  not  having  the 
key,  and  hence  can  not  be  said  to  communicate  or  publish  any- 
thing ;  but  to  the  person  having  the  key  they  are  intelligible  and 
convey  information.  Now,  if  the  cipher  used,  as  designed  to  be 
interpreted  by  the  key,  conveys  a  defamatory  idea  to  the  person 
correctly  interpreting  it,  to  him  it  would  be  a  defamatory  pub- 
lication; but  suppose  a  person  sends  a  message  using  words  in 
their  ordinary  meaning,  but  the  person  receiving  it  shall  imagine 
that  it  is  a  cipher  and  interprets  it  and  gets  a  wrong  idea,  the 
original  sender  would  not  be  responsible  for  this  false  and  unde- 
signed interpretation. 

Falsity  of  Statement. 

The  statement  must  be  false. .  The  right  of  the  individual  be- 
ing to  have  reputation  exactly  corresponding  with  and  conform- 
ing to  his  character,  it  necessarily  follows  that  a  true  statement, 
however  much  it  may,  in  fact,  injure  one 's  reputation,  could  only 
do  so  by  depriving  him  of  so  much  of  his  reputation  as  was  be- 
yond his  real  character,  and  thus  could  not  be  actionable,  because 
it  involves  no  violation  of  right,  on  the  one  hand,  nor  breach  of 
duty,  on  the  other.  It  is,  therefore,  a  settled  rule  of  law  that,  no 
matter  how  damaging  a  statement  may  be,  or  how  evil  the  motive 
of  the  party  making  it,  it  can  not  be  a  tort  unless  it  be  false. 

There  is  an  old  Common  Law  saying  that  "the  greater  the 
truth,  the  greater  the  libel."  This  applies  only  in  criminal  Law, 
and  has  no  place  in  Torts.  Even  in  our  Criminal  Law  this  is  not 
universally  recognized ;  in  prosecutions  for  slander,  in  some  States 
truth  is  a  defense. 

It  must  be  remembered,  however,  that  every  one  is  presumed  to 
be  of  good  character  until  the  contrary  is  proved ;  so,  in  the  trial 


566  AMERICAN   ELEMENTARY   LAW. 

of  cases  of  this  sort,  the  plaintiff  is  required  to  plead  the  falsity 
of  the  charges,  but  is  not  required  to  prove  the  plea.  The  defend- 
ant is  required  to  show  the  truth,  which  he  can  do  only  under 
appropriate  pleadings  to  that  effect. 

Mast  Concern  Another. 

The  statement  must  be  concerning  some  other  person :  It  may 
involve  the  speaker,  in  connection  with  others,  but  if  it  involve 
only  him  it  can  not  be  a  tort,  for  one  can  not  commit  a  tort  against 
himself. 

"Without  Legal  Excuse. 

It  must  be  made  without  legal  excuse:  The  old  definitions  all 
use  the  term  malicious,  but  this  is  not  an  accurate  expression  of 
the  law  at  this  time,  if  it  ever  were.  It  is  not  at  all  necessary  that 
the  statement  shall  be  prompted  by  any  ill-will,  or  desire  or  ex- 
pectation of  injury.  If  it  be  defamatory  and  false,  and  the  cir- 
cumstances afford  no  legal  excuse  for  the  publication,  it  is  action- 
able, without  reference  to  the  motive  or  purpose  of  the  party. 
The  excuses  which  may  be  set  up  differ.  They  are  usually  classed 
as  absolute  and  conditional  privileges,  and  we  will  consider  them 
in  that  way. 
Libel  and  Slander. 

Going  back  to  the  terms  libel  and  slander,  it  is  well  to  keep  the 
difference  between  them  clearly  in  mind,  because  most,  if  not  all, 
books  treat  them  separately;  because  some  of  the  rules  of  law 
applicable  to  them  respectively  are  different;  because  somewhat 
different  rules  of  pleading  govern  them. 

Absolute  Privileges  or  Excuses. 

These  privileges  grow  out  of  the  circumstances  under  which  the 
statements  are  made,  and  constitute  an  absolute  bar  to  liability 
for  the  wrong,  however  grevious  the  damage  or  wicked  the  motive 
of  the  person  making  the  statement,  These  absolute  privileges  are 
confined  to  persons  exercising  the  functions  of  a  public  office  or  of 
a  position  of  a  quasi-public  nature.  They  exist  in  behalf  of  all 
legislative  and  judicial  officers  as  to  statements  made  in  the  dis- 
charge of,  or  in  immediate  connection  with  the  discharge  of,  their 
official  duties.  Members  of  Congress,  or  of  the  State  legislature, 
are  absolutely  privileged  and  free  from  pecuniary  liability  for  ut- 
terances upon  the  floor  of  their  respective  houses.     It  is  better 


SOME   NAMED   TORTS.  567 

that  occasionally  an  individual  should  suffer  from  some  wrongful 
attack  upon  him  than  that  there  should  be  any  embarrassment  or 
fear  operating  on  the  minds  of  the  representatives  of  tbe  people 
in  the  discussion  of  public  matters.  So  the  judge,  in  the  exercise 
of  the  duties  of  his  office,  can  not  he  held  accountable  for  his  offi- 
cial utterances.  So  high  executive  officers,  the  President  and  his 
Cabinet,  the  Governor  and  heads  of  State  departments,  are  not  lia- 
ble for  any  statements  made  in  official  documents  of  any  kind.  In 
some  of  the  States,  this  absolute  privilege  extends  also  to  attor- 
neys, parties  and  witnesses  in  the  trial  of  cases.  This  is  not  the 
rule  in  the  Federal  courts,  however,  the  privilege  in  these  courts 
extending  only  to  statements  which  are  relevant  to  some  issue  in 
*the  case. 
Conditional  Privileges. 

These  are  not  so  far  reaching  as  the  class  just  considered,  and 
extend  only  to  cases  in  which  the  party  making  the  statement  acts 
in  good  faith,  and  without  malice. 

The  privilege  does  not  exist  at  all  unless  there  be  some  special 
relation  of  trust  and  confidence  between  the  person  making  the 
statement  and  the  one  to  whom  it  is  made.  This  relation  must  be 
such  as  to  create  or  give  rise  to  a  duty  to  disclose  the  matter  stated, 
if  it  were  true ;  whenever  this  duty  arises,  if  the  person  owing  it, 
in  good  faith  believes  the  statement  to  be  true,  and  communicates 
it  in  an  honest  endeavor  to  discharge  this  duty,  he  is  not  liable. 
Absence  of  good  faith,  or  the  existence  of  malice,  will  either  de- 
stroy the  privilege,  or  take  the  case  outside  of  the  privilege  rule, 
and  make  the  person  liable. 
Damages. 

With  reference  to  the  damage  resulting,  statements  are  divided 
into  those  actionable  per  se,  and  those  not  so  actionable. 

Statements  actionable  per  se  are  those  of  such  a  nature  that  the 
law  presumes  damage  to  result,  and  gives  a  right  of  action  for 
the  defamation,  although  no  actual  damage  can  be  proved  in  the 
particular  case. 

They  are  usually  spoken  of  as  being  of  four  kinds: 

1.  Those  charging  one  with  the  commission  of  a  crime  infamous 
in  its  nature  or  punishment. 

2.  Tbose  charging  one  with  having  a  contagious  or  disgraceful 
disease. 


568  AMERICAN   ELEMENTARY   LAW. 

3.  Those  affecting  one  in  his  office. 

4.  Those  affecting  one  in  his  business. 

In  these  cases  it  is  not  necessary  to  prove  any  special  damage  in 
order  to  recover,  though  usually  the  amount  will  be  small,  unless 
there  be  some  proof  of  damage.  It  is,  therefore,  always  safer  and 
better  practice  to  have  proof  of  actual  injury,  if  it  can  be  gotten. 

Statements  not  actionable  per  se.  Many  false  statements  are 
defamatory  and  actually  injurious  which  do  not  come  under  any 
one  of  the  four  classes  above  enumerated. 

In  order  to  make  out  a  case  on  such  a  statement,  it  is  necessary 
to  plead  and  prove  the  facts  constituting  the  damage.  This  must 
be  the  direct  and  proximate  result,  as  in  all  other  cases,  but  when 
these  things  can  be  proved  they  will  show  a  tort,  and  entitle  to 
recovery  to  the  extent  of  the  damage.  This  class  is,  possibly,  the 
largest  of  all,  and  there  are  more  cases  brought  under  it  than  un- 
der any  other. 

TORTS  AFFECTING  PROPERTY  RIGHTS. 

We  must  keep  in  mind  the  essential  elements  of  ownership, 
right  to  possession,  use,  enjoyment,  modification,  and  disposition. 
It  is  a  tort  unlawfully  to  deprive  an  owner  of  any  one  of  these 
rights  in  the  thing  owned,  either  wholly  or  partially;*  and,  of 
course,  to  deprive  him  of  all  of  them.  The  distinction  between 
personal  and  real  property  must  also  be  regarded  in  determining 
what  conduct  is  tortious,  and  what  elements  of  damage  may  be 
recovered  for  any  wrong. 

We  will  first  take  up  some  of  the  torts  which  may  be  committed 
with  regard  to  either  real  or  personal  property. 

Trespass. 

Any  forcible  invasion  of  the  rights  of  another,  whether  of  per- 
son or  property,  was,  at  Common  Law,  known  as  a  trespass.  We 
rarely,  if  ever,  use  the  term  now  as  including  wrongs  to  the  per- 
son, but  limit  it  to  forcible  wrongs  to  property,  real  or  personal. 
In  this  connection,  the  word  forcible  is  used  in  its  common  rather 
than  its  scientific  meaning  or  acceptation.  It  is-  probably  scien- 
tific to  say  that  most  nuisances  involve  some  element  of  force,  but 
the  law  does  not  look  upon  the  invasion  of  air  by  odors  or  noises 
as  an  application  of  force,  and  in  its  use  of  the  term  restricts  it 
to  such  force  as  is  visible  in  its  effects  and  operates  through  tan- 


SOME   NAMED   TOETS.  569 

gible  means.  "We  therefore  say  that  a  trespass  is  a  forcible  in- 
vasion of  another's  rights,  while  a  nuisance  is  an  act,  or  omission, 
not  involving  a  use  of  force  but  which,  in  its  direct  consequences, 
works  injury  to  another. 

Any  unlawful  entry  upon  the  land  of  another  is  a  trespass  and 
a  tort.  We  considered  this  at  some  length  in  our  previous  work, 
and  need  not  go  into  it  in  detail  again. 

Many  of  these  trespasses,  considered  in  themselves,  are  very 
slight  disturbances  of  another,  but  still  the  law  recognizes  them 
as  wrongs,  and  will  give  a  remedy  of  nominal  damages.  If  this 
were  not  so,  the  trespasser  might,  by  frequent  repetitions,  finally 
acquire  a  right  by  prescription  or  limitation. 

The  early  Common  Law  remedies  for  trespasses  upon  land 
were  very  complicated  and  expensive.  Even  in  the  Common  Law 
courts  these  have  been  superseded  by  the  action  of  ejectment. 
This  is  the  remedy  now  given  in  many  of  the  States.  In  other 
States  the  action  of  ejectment  has  been  superseded  by  statutory 
proceedings.  These  differ  in  the  different  states.-  If  the  trespass 
is  one  that  does  not  involve  the  title,  but  simply  possession  of  the 
land,  the  action  of  forcible  entry  and  detainer  frequently  affords 
sufficient  remedy. 

Forcible  injuries  to  personal  property  are  also  called  trespasses. 
"Whenever  one  person,  by  force,  injures  personal  property  belong- 
ing to  another,  it  is  prima  facie  a  tort  and  the  person  committing 
the  injury  will  be  held  liable  to  the  extent  of  the  damage  inflicted 
unless  he  can  show  such  facts  as  will  legally  justify  him  in  so 
doing.  The  remedies  will  depend  on  the  nature  of  the  injury. 
If  it  results  in  total  destruction  of  the  property,  then  the  liability 
is  for  the  full  value  of  the  property ;  if  the  injury  is  only  partial, 
the  liability  is  for  the  difference  in  the  value  of  the  thing  in  its 
sound  condition  and  the  condition  to  which  the  injury  reduces  it, 
with  reasonable  and  proper  expense  incurred  in  caring  for  it  and 
also  the  reasonable  value  of  its  use  while  deprived  of  it,  if  the 
injury  be  only  temporary. 

Fraud. 

"We  have  already  dealt  at  length  with  the  subject  of  fraud  and 
have  found  that  most  frequently  it  is  a  wrong  perpetrated  by  one 
party  to  an  agreement  upon  the  other,  though  sometimes  the 
fr«.ud  may  affect  one  not  a  party  to  the  agreement.     As  between 


570  AMERICAN   ELEMENTARY   LAW. 

the  parties  to  the  agreement,  fraud  is  either  in  inducement  or  in 
esse  contractus.     Each  of  these  has  been  defined  heretofore. 

We  also  found  that  fraud  in  inducement,  considered  in  its 
broadest  sense,  embraces  both  deceit  at  Common  Law  and  misrep- 
resentation in  Equity.  In  those  jurisdictions,  where  the  differ- 
ence between  law  and  equity  still  remains  in  full  force,  this  dis- 
tinction is  still  recognized ;  deceit  being  a  tort  entitling  to  damage, 
equitable  misrepresentation  not  entitling  to  damage  but  to  rescis- 
sion of  the  agreement  or  constituting  a  defense  against  an  action 
for  specific  performance.  In  other  States,  where  the  distinction 
between  law  and  equity  is  not  recognized,  both  deceit  and  equi- 
table misrepresentation  are  dealt  with  as  torts  entitling  to  the 
legal  remedy  for  damage  and  the  equitable  remedies  of  rescission 
or  non-liability  for  non-performance,  according  to  the  facts  of  the 
case. 

The  legal  essence  of  fraud  is  deception  resulting  in  hurt  to  the 
deceived.  This  deception  must  be  as  to  a  past  or  present  fact, 
not  matter  of  opinion  or  future  expectation  simply.  A  false 
statement  as  to  present  conditions  made  as  a  basis  for  credit  or 
to  induce  other  action  by  the  party  deceived,  or  a  false  statement 
as  to  present  intent  to  keep  a  promise,  is  regarded  as  a  present 
fact.  The  fact  must  be  material  to  the  matter  under  considera- 
tion, that  is,  must  be  of  such  a  nature  and  so  related  to  or  con- 
nected with  the  matter  under  consideration,  as  to  be  reasonably 
calculated  to  induce  the  party  to  take  action  desired  by  the  per- 
son guilty  of  the  fraud.  The  ordinary  test  is,  was  the  matter 
stated  as  a  fact  reasonably  calculated  to  induce  or  influence  action 
by  a  reasonably  prudent  person  ?  If,  in  any  given  case,  the  per- 
son claiming  to  have  been  influenced  was  so  circumstanced  that  he 
was  more  than  ordinarily  easy  to  influence,  he  must  plead  and 
prove  these  special  facts.  The  person  defrauded  must  have  be- 
lieved this  material  fact  to  be  true,  when  in  reality  it  was  false 
and  must  have  been  influenced  by  this  belief  to  give  his  assent  to 
the  agreement,  and  the  agreement  must  have  resulted  in  his  in- 
jury. 

All  the  foregoing  elements  are  common  both  to  Common  Law 
deceit  and  Equitable  misrepresentation.  The  difference  between 
these  relates  to  the  manner  in  which  the  deception  is  occasioned 
and  the  connection  of  the  party  charged  with  the  fraud  with  the 


SOME   NAMED   TORTS.  571 

deception.  In  deceit,  the  deception  must  be  occasioned  by  repre- 
sensations  made  by  the  party  charged  with  the  fraud,  with  intent 
to  deceive  the  person  defrauded,  and  when  he  made  such  represen- 
tations he  must  have  known  them  to  be  false,  or  must  have  made 
them  recklessly  without  believing  that  they  were  true.  These  false 
representations  are  of  three  general  kinds :  First,  those  which  the 
party  know  to  be  false ;  second,  those  which  are  false  in  fact,  and 
which  the  party  believes  to  be  false,  yet  states  to  be  true;  and 
third,  those  which  are  false  in  fact,  which  the  party  believes  to  be 
true  though  he  did  not  know  it  and  yet  states  them  to  be  true  as  of 
his  own  knowledge.  Unless  the  statement  comes  under  one  or 
the  other  of  these  general  classes  it  will  not  support  an  action  for 
damages  for  deceit  aj;  Common  Law. 

Equitable  misrepresentation  includes  all  the  statements  em- 
braced in  the  Common  Law  conception  of  deceit  and  in  addition, 
misrepresentations  made  to  the  deceived  person  and  honestly  be- 
lieved to  be  true  by  the  party  making  them,  provided  the  facts  are 
such  as  to  entitle  the  party  to  whom  the  statement  is  made  to  rely 
upon  the  one  making  it  for  information.  Whenever  this  right  of 
reliance  exists,  equity  requires  the  person  undertaking  to  give  in- 
formation to  speak  truly  or  bear  the  consequences  himself.  If, 
therefore,  one  makes  a  material  statement  as  to  a  past  or  present 
fact,  and  thus  influences  another  to  act  and  it  subsequently  de- 
velops that  this  statement  is  false  and  that  the  action  of  the  de- 
ceived party  has  been  injurious  to  him,  equity  will  give  relief  to 
the  deceived  person  notwithstanding  the  party  making  the  state- 
ment in  fact  believed  it  to  be  true  and  had  reasonable  grounds  for 
so  doing. 

If  a  party,  who  is  not  bound  to  disclose,  knows  or  has  reason  to 
believe  that  the  other  party  to  the  negotiation  is  ignorant  concern- 
ing.some  material  fact  and  under  these  conditions  volunteers  in- 
formation as  to  this  fact,  he  will  be  bound  by  and  responsible  for 
any  false  statements  be  makes.  While  he  is  under  no  obligation 
to  speak,  if  he  volunteers  to  speak,  he  must  speak  truly. 

The  foregoing  differences  between  deceit  and  equitable  misrep- 
resentation seem  to  be  clearly  established,  though  there  is  a  tend- 
ency in  some  courts,  even  where  Law  and  Equity  are  still  dis- 
tinct, to  lose  sight  of  them  to  some  extent.  In  some  of  the  States 
in  which  the  distinction  between  Law  and  Equity  is  not  recog- 


572  AMERICAN  ELEMENTAEY  LAW. 

nized,  the  distinctions  above  made  between  deceit  and  misrep- 
resentation are  no  longer  kept  up. 

"When  we  consider  fraud  by  concealment  the  question  is  some- 
what more  difficult,  though  the  tendency  seems  to  be  to  regard  any 
artifice  resorted  to  by  one  seeking  to  get  advantage  from  a  false 
impression  then  existing  in  the  mind  of  another,  to  throw  the  de- 
ceived party  off  his  guard  or  to  prevent  or  hinder  investigation 
which  would  lead  to  a  disclosure  of  the  truth,  is  legally  equiva- 
lent to  making  a  known  false  statement,  and  hence,  will  support  a 
Common  Law  action  for  deceit.  There  is  no  question  that  such 
concealment  entitles  to  relief  in  Equity  as  fully  as  known  false 
statements. 

It  is  doubtful  whether  simple  non-disclosure  of  the  truth  can 
ever  be  regarded  as  Common  Law  deceit.  In  equity,  if  the  facts 
are  such  as  call  for  disclosure,  failure  to  disclose  resulting  in  in- 
jury is  always  actionable. 

Remedy. — Only  the  party  injured  by  the  deception  or  those 
holding  under  him  can  maintain  an  action  for  fraud.  If  the 
party  attempting  to  perpetrate  the  fraud  is  injured  by  it  he  is 
without  redress. 

The  remedy  for  Common  Law  deceit  is  an  action  for  damages. 
Not  infrequently  the  matter  actually  arises  as  a  defense  in  an  ac- 
tion brought  to  enforce  a  contract.  If,  at  the  time  that  the 
contract  was  made,  or  at  any  time  before  the  fraud  was  discov- 
ered, or  by  the  exercise  of  reasonable  care  should  have  been  dis- 
covered, the  defrauded  party  performs  his  part  of  the  agreement, 
his  only  remedy  at  law  would  be  to  sue  the  defrauding  party  for 
damages.  In  such  case,  the  damage  would  be  measured  by  the 
difference  in  the  market  value  of  the  thing  as  it  was  represented 
to  be  and  its  market  value  as  it  in  fact  was.  If  the  defrauded 
party  has  not  paid  for  the  thing,  when  he  discovers  the  fraud, 
his  remedy  at  law  is  to  retain  the  thing  and  pay  only  its  real  mar- 
ket value  instead  of  the  contract  price.  Remedies  in  Equity  are 
rescission  of  the  contract  and  recovery  back  the  amount  that  has 
been  paid,  if  any,  and  such  other  damage  as  directly  results  from 
fraud ;  or,  the  defrauded  party  may  set  up  the  deceit  or  misrep- 
resentation as  a  defense  against  an  action  in  Equity  to  enforce 
the  contract.  As  the  equitable  remedies  may  be  had  on  facts 
showing  either  deceit  or  misrepresentation  and  are  more  complete 
and  adequate  than  those  which  can  be  obtained  at  Law,  by  far 


SOME  NAMED   TORTS.  573 

the  larger  part  of  modern  litigation  regarding  fraud  is  carried  on 
in  the  Equity  courts. 

Fraud  in  esse  contractus  is  a  tort  but  it  rarely  is  a  basis  of  a 
suit  for  affirmative  relief.  This  kind  of  fraud  can  be  perpetrated 
only  in  connection  with  the  execution  and  obtaining  possession  of 
written  instruments.  Instruments  obtained  by  this  species  of 
fraud  are  universally  recognized  as  void  and  the  facts  will  consti- 
tute a  defense  even  against  an  innocent  third  person  who  has  ac- 
quired the  paper.  Hence  the  defrauded  party  does  not  often 
find  it  necessary  to  institute  suit  for  wrongs  of  this  kind.  He 
usually  awaits  suit  by  the  party  holding  the  paper  and  interposes 
the  fraud  as  a  defense.  If  the  paper  thus  procured  is  of  such 
kind  as  to  cast  a  cloud  upon  the  title  to  property  or  otherwise  in- 
jure the  defrauded  party,  he  may  sue  in  Equity  and  have  the 
nullity  of  the  paper  declared. 

DYING  TO  SEAL  PROPERTY. 

The  right  to  keep  property  intact  or  to  modify  or  destroy  it,  as 
one  may  please,  is  one  of  the  incidents  of  ownership,  and  if  a  per- 
son, not  the  owner,  shall  make  any  change  in  the  property,  or  its 
conditions,  unless  he  has  authority,  express  or  implied,  from  the 
owner,  or  acts  under  proper  authority  from  the  government,  he 
commits  a  tort.  Injury  to  real  property,  when  committed  by  one 
who  is  unlawfully  in  possession,  is  regarded  as  an  incident  of  or 
part  of  the  trespass  involved  in  the  wrongful  taking  and  holding 
possession,  and  the  damage  may  be  recovered  in  the  action  to  re- 
gain possession. 

Waste. 

When  one  is  lawfully  in  possession  of  real  property  which  be- 
longs to  another,  and  takes  advantage  of  his  possession  to  injure 
the  property,  this  is  called  waste. 

Waste  is  of  two  kinds:  (1)  Positive  injury  done  by  the  affirma- 
tive wrong  conduct  of  the  person  in  possession;  (2)  permissive, 
which  consists  in  failure  to  repair  and  keep  up  the  premises  when 
it  is  the  duty  of  the  one  in  possession  to  do  so.  The  law  forbids  a 
tenant  under  lease  which  is  silent  on  the  subject  of  repairs  to  do 
any  act  which  injures  the  property  beyond  ordinary  wear  and 
tear,  and  if  he  does  such  acts,  he  is  responsible ;  on  the  other  hand, 
it  does  not  require  him  to  keep  the  premises  in  repair  or  to  pro- 


574  AMERICAN   ELEMENTARY  LAW. 

tect  them  from  injury  from  natural  causes ;  so  that  it  is  customary 
to  say  that  a  tenant  is  responsible  to  the  landlord  for  injuries  re- 
sulting from  his  affirmative  wrong-doing,  but  is  not  for  permis- 
sive waste  not  attributable  to  his  fault. 

When  one  person  owns  an  estate  in  land  entitling  him  to  pos- 
sess and  use  it  for  a  time  and  some  other  person  owns  the  re- 
mainder or  reversion,  the  one  in  possession  must  not  do  or  suffer 
anything  to  be  done  on  the  premises  which  will  injure  the  estate 
or  value  of  the  property  to  the  remainderman  or  reversioner,  fur- 
ther than  is  involved  in  using  the  property  during  his  holding  in 
the  ways  and  for  the  purposes  for  which  it  was  used  when  he  came 
into  possession.  Thus,  if  there  is  coal  on  land  and  one  person  has 
a  life  estate  in  the  land,  if  no  mines  were  open  on  it  when  he  ac- 
quired his  life  estate  he  can  not  open  any;  or,  if  two  mines  only 
were  open,  he  can  not  open  others,  though  he  may  continue  to 
work  those  which  were  open  when  his  estate  began.  The  same 
rules  hold  generally  as  between  all  owners  of  present  interests  and 
persons  having  subsequent  estates  in  the  property. 

Injuries  to  Easements. 

We  have  already  considered  nuisances.  In  most  instances,  in- 
terference with  one's  use  of  an  easement  is  a  nuisance,  and  dealt 
with  as  indicated  in  the  treatment  of  that  subject.  Names,  how- 
ever, are  largely  immaterial  and,  if  one  has  an  easement  and  an- 
other unlawfully  interferes  with  it  or  obstructs  the  owner  in  its 
enjoyment,  an  action  will  lie  for  the  wrong. 

Cloud  Upon  and  Slander  of  Title. 

As  we  have  seen,  one  of  the  incidents  of  ownership  is  the  right 
to  dispose  of  the  thing.  There  are  two  torts  which  injuriously 
affect  this  right;  the  first  is  casting  cloud  on  one's  title  by  setting 
up  an  adverse  claim  to  the  property.  This  is  usually  done  by 
obtaining,  in  some  manner,  a  deed  or  other  writing  pretending  to 
convey  the  title  or  a  claim  to  the  land  to  the  person  guilty  of  the 
wrong,  and  placing  it  upon  record,  and  thus  inducing  prospective 
purchasers  to  doubt  the  genuineness  of  the  title  of  the  real  owner. 
The  usual  remedy  here  is  to  sue  and  obtain  a  judgment  declaring 
the  true  title  to  be  the  genuine  and  only  one  to  the  land,  and  de- 
claring the  other  to  be  worthless.  The  second  is  very  similar,  and 
consists  in  making  and  circulating  false  reports  concerning  one's 


SOME   NAMED   TORTS.  575 

title  to  his  property,  for  example,  that  the  deed  under  which  he 
claims  is  a  forgery,  and  thus  destroying  the  reputation  of  his 
title  and  diminishing  its  market  value.  The  remedy  here  is  to 
sue  for  any  damage  which  may  have  directly  resulted  from  such 
reports,  and  also  to  have  the  same  adjudged  slanderous  and 
false,  so  as  to  prevent  future  injury,  and  sometimes  an  injunction 
to  prevent  repetition  might  be  awarded. 

TORTS  TO  PERSONAL  PROPERTY. 
General  Discussion. 

Ownership  of  personal  property  may  be  general  or  special. 
The  general  ownership  embraces  the  five  elements  of  possession, 
use,  profit,  modification,  and  disposition.  Special  ownership  con- 
sists in  some  one  or  more  of  these  elements  or  all  of  them  for  a 
limited  time  and  purposes. 

Any  invasion  of  any  one  of  these  rights,  whether  of  the  general 
or  special  owner,  resulting  in  damage  to  him  is  a  tort  as  to  such 
owner.  If  one  person  is  the  general  and  another  the  special 
owner  of  the  same  thing,  the  same  wrongful  act  or  omission  may 
be  a  tort  as  against  both.  Thus,  if  A  owns  a.  piece  of  personal 
property  and  has  hired  it  to  B  for  a  year  and  C  shall  wrongfully 
destroy  the  property,  this  is  a  tort  as  against  B  in  so  far  as  it  de- 
prives him  of  the  present  possession,  use,  and  profit  of  the  thing, 
and  is  also  a  tort  as  against  A,  because  it  deprives  him  of  the 
thing  which  would  have  come  back  to  him  in  full  ownership  upon 
the  expiration  of  the  term  of  hiring. 

It  is  manifestly  impracticable  to  enumerate  all  of  the  various 
torts  which  may  be  committed  regarding  personal  property. 
The  great  majority  of  them,  however,  fall  into  one  of  two 
general  classes;  first,  wrongs  which  consist  in  the  injury  or  de- 
struction of  the  thing  owned,  and  second,  wrongs  which  do  not 
injure  the  thing  itself  but  which  consist  in  taking  it  into  posses- 
sion and  using  or  profiting  by  it  or  in  some  way  exercising  domin- 
ion over  it. 

The  Common  Law  recognized  these  various  kinds  of  wrongs 
and  provided  several  forms  of  action  with  regard  thereto.  The 
principal  of  these  Common  Law  actions  were  replevin,  trespass, 
and  detinue.  Each  of  these  was  fairly  technical  and  Parliament 
later  introduced  the  statutory  action  known  as  trover,  or  trover 
and  conversion. 


576  AMERICAN   ELEMENTARY   LAW. 

The  action  of  trespass  can  be  maintained  at  Common  Law  only 
in  cases  where  the  defendant  came  into  the  possession  of  the  prop- 
erty by  unlawful  act.  If  his  possession  was  originally  lawful, 
trespass  could  not  be  maintained  against  him  no  matter  how  un- 
lawful his  subsequent  conduct. 

Replevin  at  Common  Law  could  only  be  used  to  recover  pos- 
session of  a  specific  thing.  If  the  thing  could  not  be  had,  no  al- 
ternate judgment  for  its  value  or  other  damage  could  b6  given. 

Detinue  could  be  maintained  either  for  the  recovery  of  the 
thing  or  for  damage  for  its  unlawful  detention. 

Trover  is  a  statutory  action  on  the  case  for  damages  for  the 
wrongful  exercise  of  dominion  over  property,  or  conversion  of 
it,  as  it  is  technically  called.  The  judgment  sought  is  not  for 
the  return  of  the  property  but  for  damages  for  its  conversion. 

These  various  forms  of  action  have  been  entirely  superseded  in 
many  jurisdictions.  Even  in  those  states  in  which  the  names  are 
retained,  they  have  been  greatly  modified  by  various  statutes,  de- 
cisions, and  rules  of  practice.  It  would  not  be  profitable  to  at- 
tempt to  trace  these.  It  is  sufficient  to  say  that  by  proper  pro- 
ceeding a  fairly  appropriate  remedy  may  be  had  in  each  of  the 
States  for  any  wrong  to  personal  property  unlawfully  committed. 
These  remedies  consist  in  one  or  the  other  or  a  combination  of 
the  following: 

(1)  The  recovery  of  the  specific  thing  and  compensation  for  its 
use  during  the  time  of  its  detention,  and,  if,  in  any  case,  injury- 
has  been  done  to  the  thing,  damages  to  cover  such  injury. 

(2)  The  value  of  the  thing,  plus  interest,  or  damage  in  the 
nature  of  interest,  on  this  value,  from  the  date  of  the  conversion 
to  the  date  of  the  judgment. 

In  most  of  the  States  the  Common  Law  has  been  so  modified  as 
to  permit  the  plaintiff  to  combine  these  two  in  one  action  and 
recover  a  judgment  in  the  alternative ;  that  is.  that  the  property 
be  restored,  if  that  can  be  done,  and  if  not,  that  the  damages  be 
paicl.  It  is,  of  course,  optional  with  the  plaintiff  which  remedy 
he  shall  pursue. 

Interference  Under  Process  with  Personal  Property. 

One  of  the  most  common  instances  of  the  violation  of  right  in 
personal  property  is  unlawful  interference  with  it  by  officers,  un- 
der supposed  authority  of  some  legal  process. 


SOME  KAMJiD  TGRTB.  577 

"Vv  I'ilfc.  ali  property  owned  by  any  one,  except  such  as  is  speci- 
ally exempted  by  law,  is  subject  to  lawful  seizure,  under  legal 
process  directed  against  it,  a  person  is  protected  from  any  inva- 
sion of  his  title  or  possession  under  mere  semblance  of  legal  au- 
thority. It  therefore  becomes  important  to  fix  clearly  in  mind 
the  rules  by  which  to  distinguish  between  lawful  and  unlawful 
seizure. 

The  authorities  say  that,  to  justify  the  seizure,  the  process 
must  be  fair  on  its  face;  must  run  against  the  party  whose  in- 
terest or  title  in  the  property  is  sought  to  be  seized,  and  must  au- 
thorize the  seizure  of  the  very  property  taken  in  the  manner 
m<jde. 

Process  is  fair  on  its  face  when  it  has  the  following  character- 
istics :  ( 1 )  It  must  issue  from  a  court,  and  by  an  officer  having 
jurisdiction  to  issue  it.  (2)  It  must  be  in  the  form  prescribed 
by  law,  at  least  so  far  as  such  form  is  mandatory.  (3)  It  must 
be  directed  to  the  officer  who  executes  it.  (4)  It  must  be  against 
the  party  whose  property  is  seized.  (5)  It  must  authorize  the 
seizure  of  the  property  taken  and  the  exact  disposition  made 
thereof  by  the  officer.  Unless  the  property  is  specifically  de- 
scribed in  the  writ,  it  must  be  subject  to  seizure  under  proce?s  of 
the  kind  under  which  the  officer  acts. 

A  failure  in  any  of  these  respects  will  make  the  officer  liable 
in  actual  damages. 

There  are  exceptional  cases,  in  which,  even  though  all  these 
conditions  have  been  complied  with,  the  officer  will  still  be  lia 
ble,  as  Where  the  officer  has  acquired  some  interest  ir>  the  writ,  or 
tk  proceeds  of  the  sale,  beyond  his  costs. 

Torts  Against  Incorporeal  Chattel  Interests. 

Rights  under  patents,  copyrights,  and  trade  marks  have  been 
considered  under  Property.  Any  infringement  of  one  of  these 
rights,  resulting  in  any  injury,  is  a  tort.  The  Federal  courts 
have  exclusive  jurisdiction  over  suits  for  infringement  of  patent 
rights  and  copyrights.  The  State  and  Federal  courts  have  juris- 
diction over  trade  mark  cases,  according  to  the  other  facts  and 
circumstances. 

A  patent  right  is  violated  by  duplicating  the  thing,  or  any  ap- 
preciable part  of  the  thing  patented,  and  placing  it  upon  the  mar- 
ket. A  copyright  of  a  wor>  o£  rjct  is  violated  by  making  a  copy 
37 


578  AMERICAN   ELEMENTABY   LAW. 

of  it,  or  such  a  substantial  part  of  it  as  to  be  an  appreciable  ap- 
propriation of  the  thing  copyrighted. 

The  manner  in  which  trade-marks  may  be  violated  is  set  oat  at 
length  in  treating  this  subject  under  Property. 

TORTS  AGAINST  RIGHTS  WHICH  ONE  PERSON  HAS  IN  ANOTHER. 

Generally. 

If  one  person  shall  unlawfully  seize  and  detain,  or  carry 
away,  the  child  or  wife  of  another,  in  addition  to  the  remedy 
by  habeas  corpus  to  have  the  person  released  from  custody, 
and  to  the  action  for  damages  which  the  person  detained  would 
have  for  the  assault  and  false  imprisonment,  the  father  or  hus- 
band, as  the  ease  may  be,  has  an  action  for  the  loss  sustained  by 
him  in  the  invasion  of  his  right  in  his  child  or  wife,  and  can  re- 
cover the  damage  sustained  by  him  by  reason  of  the  wrong,  and, 
in  most  instances,  exemplary  damages  also.  This  tort  would  be 
called  abduction  or  kidnapping. 

Seduction  of  a  daughter  is  also  a  tort  of  a  similar  nature. 
Alienating  the  affections  of  a  wife  is  a  tort  against  the  husband 
At  Common  Law,  there  was  nothing  allowed  the  wife  for  alienat- 
ing the  affections  of  her  husband;  but  the  later  cases  seem  to 
recognize  something  approaching  equality  of  the  spouses  in  this 
regard,  and  to  enable  the  wife  to  sustain  such  an  action.  Unlaw- 
fully inflicting  injury  upon  a  minor  child,  or  a  wife,  is  also  a  tort 
against  the  father,  or  the  husband,  for  which  he  may  recover. 
The  same  is  true  of  enticing  away  or  injuring  a  servant.  The 
master  is  entitled  to  just  compensation  for  the  injury  sustained, 
in  either  case. 

Great  diversity  of  opinion  has  obtained  as  to  whether  it  is  ac- 
tionable to  induce  one  to  break  a  contract  which  he  has  already 
entered  into.  It  has,  for  some  time,  been  held  that,  if  the  con- 
tract is  one  for  service,  it  is  actionable  to  induce  the  servant  to 
break  it ;  also  if  the  person  bringing  about  the  breach  is  actuated 
by  malice  or  directly  profits  by  the  breach,  this  renders  him  liable, 
without  reference  to  whether  the  contract  were  one  for  service  or 
not.  Some  of  the  later  cases  have  gone  further  than  either  of 
these  holdings,  and  announce  the  doctrine  that,  as  to  third  par- 
ties, a  contract  creates  a  right  analogous  to  a  property  right  in 
the  performance  of  the  undertaking ;  and  hence,  any  one  iBfiflfc 


SOME   NAMED   TOBTS.  579 

ing  another  to  break  a  valid  contract  is  interfering  with  a  sub- 
stantial, legal  right,  and  must  respond  for  any  directly  resulting 
damage.     This  seems  rational  and  just. 

Injuries  Resulting  in  Death.    • 

Probably  the  most  obvious  example  of  rights  of  the  kind  now 
under  consideration,  and  of  responsibility  for  their  violation,  is 
found  in  the  constitutional  and  statutory  provisions  for  making 
one  person  compensate  another  for  the  injury  occasioned  by  the 
wrongful  killing  of  a  third.  This  subject  is  usually  treated  un- 
der the  head  of  injuries  resulting  in  death. 

At  Common  Law,  homicide  under  many  circumstances,  was  a 
most  heinous  crime,  but  was  never  a  tort.  The  injured  party  was 
beyond  any  legal  redress,  and  others  were  not  regarded  as  having 
such  an  interest  or  claim  in  his  services  or  to  them  as  would  con- 
stitute a  legal  right.  It  follows  that  all  torts  of  this  kind  depend 
on  Written  Law,  constitutional  or  statutory,  and  no  act,  or  omis- 
sion, not  covered  by  such  law  can  constitute  such  a  tort  nor  do  the 
rights  conferred  by  such  statutes  exist  in  favor  of  one  not  named 
in  the  law  as  a  beneficiary,  nor  against  one  not  named  therein  as 
liable.  In  other  words,  the  right  to  recover  damage  for  the  death 
of  another  is  not  a  Common  Law  right,  but  a  statutory  one  and 
can  exist  only  according  to  the  statute  creating  it.  The  first  stat- 
ute of  this  kind  existing  in  any  Common  Law  country  was  the  act 
of  the  English  Parliament,  passed  in  1846,  and  commonly  known 
as  the  Lord  Campbell's  Act.  Since  that  time,  almost  every 
American  State  has  passed  similar  statutes,  the  English  statute 
being,  in  the  main,  the  model  by  which  these  were  drafted.  So 
we  find  a  very  great  similarity  in  the  statutes  on  this  subject. 

There  are  four  things  to  be  considered,  primarily,  in  seeking 
the  effect  of  constitutional  and  statutory  provisions  of  this  kind. 
viz.: 

1.  To  whom  the  right  is  given. 

2.  Against  whom  it  is  given. 

3.  "What  acts  or  omissions  subject  one  to  liability. 

4.  What  elements  of  damage  may  be  recovered  therefor. 
Other  matters,  such  as  procedure  in  the  case,  are  important, 

but  the  four  things  enumerated  are  indispensable. 

Detailed  consideration  and  accurate  answer  to  any  one  of  the 
questions  or  suggestions  above  is  impossible,  as  each  Legislature 


580  AMERICAN   ELEMENTARY   LAW. 

determines  each  of  these  matters  for  itself  and  while  there  is 
similarity  as  to  the  general  nature  and  purpose  of  the  statutes, 
there  is  decided  variety  as  to  detail. 

The  beneficiaries  are,  in  all  instances,  persons  closely  related  to 
the  deceased,  consisting  usually  of  the  surviving  husband  or  wife 
and  children ;  not  infrequently  parents  are  included. 

There  is  less  uniformity  as  to  the  persons  against  whom  the 
right  of  action  is  given.  Some  of  the  States  give  a  remedy 
against  any  person  whose  conduct  occasions  the  death  of  another 
under  the  circumstances  indicated  in  the  statute.  Some  give 
remedy  against  any  person  who  is  himself  guilty  of  the  unlawful 
conduct  when  the  homicide  occurs  in  a  specified  way,  and  then 
have  other  provisions  fixing  liability  upon  designated  principals 
and  masters  when  death  occurs  as  a  result  of  specified  wrongs  by 
their  agents  or  servants.  There  is  a  tendency  in  the  statutes  to 
limit  this  secondary  range  of  liability  to  businesses,  such  as  com- 
mon carriers,  etc.,  in  which  the  dangers  are  great  and  the  neces- 
sity for  unusual  care  in  the  selection  of  employees  is  apparent. 

The  statutes  vary  materially  as  to  the  conduct  leading  to  lia- 
bility. Where  the  liability  is  limited  to  or  based  on  the  conduct 
of  the  defendant  himself,  it  usually  embraces  all  unlawful  acts  or 
omissions  resulting  in  death.  Where  the  liability  is  extended  to 
the  secondary  range  it  is  usually  limited  to  negligent  acts  or 
omissions  as  distinguished  from  intentional  and  willful  homicides. 

The  damages  recoverable  differ  somewhat  in  the  different 
States.  They  are,  however,  limited  everywhere  to  damages  sus- 
tained by  the  surviving  relatives  and  do  not  include  the  elements 
of  damage  which  could  have  been  recovered  by  the  deceased  in 
his  own  behalf  had  he  survived  the  injury.  The  damage  is  usu- 
ally, in  express  terms,  limited  to  pecuniary  loss.  Mental  suffer- 
ing on  account  of  the  death  of  the  deceased  is  not  ordinarily  al- 
lowed. In  a  number  of  the  States  there  is  a  maximum  limit  fixed 
by  the  statute  beyond  which  the  court  or  jury  cannot  go  in  allow- 
ing damages.  In  the  other  States  the  amount  is  left  to  the  sound 
discretion  of  the  jury  subject  to  correction  by  the  judge. 

As  these  actions  have  no  support  at  Common  Law,  to  entitle 
any  one  to  recover  he  must  bring  himself  within  the  provision 
of  the  constitution  or  statute  upon  which  his  suit  is  based.  These 
provisions  receive  fair  and  reasonable  construction  but  their  ef- 


SOME   NAMED   TORTS.  581 

feet  cannot  be  extended  beyond  the  terms  of  the  statute  by  anal- 
ogy or  because  some  case  arises  which,  though  meritorious,  is  not 
within  the  fair  interpretation  of  the  words  of  the  act.  The  pro- 
cedure in  these  cases  is  usually  regulated  by  the  statute  giving 
the  right  and  no  general  discussion  of  that  subject  would  be  prof- 
itable. 


CHAPTER  IV. 

\ 

OUTLINE   OP    THE   LAW    OP    CONTRACTS.* 
Definition. 

The  fundamental  notion  of  a  contract  is  an  agreement  resulting 
in  obligation. 

The  term  agreement,  in  this  connection,  means,  primarily,  the 
meeting  of  the  minds  of  two  or  more  persons  as  to  some  definite 
thing  to  be  done  or  forborne.  There  must  be  the  same  thing  in 
this  minds  of  both  parties,  and  their  common  intention  with  refer- 
ence thereto  must  be  communicated  between  them.  Further,  in 
order  that  the  agreement  may  be  such  as  can  result  in  contract, 
this  intention  of  the  parties  must  contemplate  the  assumption  of 
legal  rights  and  duties  by  the  parties  to  it — a  change  in  their  ex- 
isting legal  relations.  Agreement  may  be  defined  as  "the  ex- 
pression of  two  or  more  persons  of  a  common  intention  to  affect 
their  legal  relations."     (Anson,  page  3.) 

That  agreement  may  amount  to  a  contract,  it  is  necessary  that 
it  be  such  an  one  as  binds  the  parties  thereto  by  legal  obligation ; 
that  is,  such  an  one  as  the  law  will  require  the  parties  to  carry  out 
according  to  the  terms  of  its  expression.  The  obligation  of  con- 
tract is  the  legal  tie  binding  the  parties  to  one  another,  in  respect 
to  some  future  acts  or  forbearances,  as  to  which  thejr  have 
expressed  a  common  intention  which  changes  their  legal  relations 
to  one  another.  Certain  things  are  prerequisite  to  all  civil  ob- 
ligation, whether  created  by  contract  or  otherwise:  (1)  there 
must  be  two  or  more  parties  bound  by  the  legal  tie;  a  man  can 
not  be  bound  to  himself  by  a  legal  obligation,  he  can  not  contract 
with  himself,  even  in  different  capacities.  (2)  The  parties  must 
be  definite;  this  element  distinguishes  these  private  obligations 
from  the  political  covenant  which  exists  between  the  individual 
and  the  community  as  to  his  conduct,  and  which  is  enforced  by 
the  Criminal  Law.     (3)   The  act  or  forbearance  in  respect  tc 


*  This  chapter  was  prepared  by  Mr.  E.  W.  Townes.  of  the  Houston 
bar,  and  is  published  by  his  permission. 


OUTLINE   OP    THE   LAW   OP   CONTRACTS.  583 

which  they  are  bound  must  also  be  definite.  (4)  The  thing  to  be 
done  or  forborne,  the  subject  matter  of  the  obligation,  must  be 
reducible  to  a  money  value,  and  must  be  lawful.  (Anson, 
pages  7  and  8.) 

"When  the  two  elements,  agreement  and  obligation,  concur,  we 
have  a  contract,  which  may  be  best  defined  as  an  "  agreement  en- 
forcible  at  law,  made  between  two  or  more  persons,  by  which 
rights  are  acquired  by  one  or  more  to  acts  or  forbearances  on  the 
part  of  the  other  or  others."     (Anson,  page  11.) 

We  will  discuss  contracts  under  the  following  heads: 

(1)  Essentials  of  Contract. 

(2)  Classification  of  Contracts. 

(3)  Operation  of  Contracts. 

(4)  Interpretation  of  Contracts. 

(5)  Discharge  of  Contracts. 

ESSENTIALS  OP  CONTRACT. 

Topics  to  be  treated : 

Offer  and  acceptance.  Form. 

Capacity  of  parties.  Genuineness  of  assent. 

Consideration.  Legality  of  object. 

Offer  and  Acceptance. 

Offer  and  acceptance  is  necessary  to  the  formation  of  every  con- 
tract; for  there  can  be  no  agreement,  such  as  is  requisite  to  a 
contract,  that  is  not  the  result  of  an  accepted  offer  to  act  or  for- 
bear. 

1.  Possible  forms  of  offer  and  acceptance  are : 

(1)  An  offer  to  make  a  promise,  or  to  accept  one.  This  is  good 
in  some  jurisdictions  but  not  all. 

(2)  The  offer  of  an  act  for  a  promise. 

(3)  The  offer  of  a  promise  for  an  act. 

(4)  The  offer  of  a  promise  for  a  promise. 

It  is  evident,  therefore,  that  either  the  offer,  or  its  acceptance, 
may  be  made  by  words  or  conduct.  Where  both  are  made  by 
words,  the  resulting  contract  is  ex/press;  where  either  is  made  by 
conduct,  the  resulting  contract  is  said  to  be  implied. 

2.  The  offer  must  be  intended  to  create,  and  capable  of  creat- 
ing, legal  relations. 


584  AMERICAN  ELEMENTARY  LAW. 

3.  The  offer  must  be  definite,  and  must  include  all  the  essen- 
tial terms  of  the  proposed  agreement,  either  expressly  or  by  clear 
implication. 

4.  An  offer  is  not  complete  until  it  has  been  communicated  to 
the  offeree,  actually  brought  to  his  knowledge.  It  need  not  be 
made  to  an  ascertained  person,  but  may  be  made  to  the  public  at 
large.  It  can  only  be  accepted  by  a  definite  and  ascertained  per- 
son. 

5.  After  acceptance,  an  offer  becomes  irrevocable,  and  the  par- 
ties are  bound  by  the  legal  obligation  of  the  contract;  before  ac- 
ceptance, the  offer  may  be  either  revoked  by  the  offerer,  in  which 
case  the  revocation  must  be  brought  actually  to  the  knowledge  of 
the  offeree  before  he  has  accepted;  or  it  may  lapse  (1)  by  the 
death  of  either  party;  (2)  by  a  failure  to  accept  in  the  manner 
prescribed,  or  (3)  by  a  failure  to  accept  within  the  time  pre- 
scribed or,  where  no  time  is  prescribed,  within  a  reasonable  time. 

6.  Acceptance  can  not  be  inferred  from  silence,  it  must  be  com- 
municated to  the  offerer;  but  in  this  connection,  communicated 
does  not  mean  actually  brought  to  his  knowledge,  as  in  case  of 
communication  of  the  offer.  It  means  that  there  must  be  some 
overt  act,  or  speech,  which  evidences  the  intention  to  accept;  it 
is  not  always  necessary  that  the  offerer  be  should  actually  in- 
formed of  this  act  or  speech.  The  acceptance  is  complete,  that 
is,  communicated,  when  it  has  been  expressed  by  word  or  act,  in 
the  manner  required  by  the  offerer,  who  may  waive  actual  notice 
to  himself,  if  so  disposed. 

7.  When  an  offer  is  made  it  must  be  accepted  as  made,  without 
qualification,  that  is,  the  offer  must  be  definite,  and  include  all 
the  essential  terms  of  the  proposed  agreement,  and  acceptance 
must  be  in  toto  and  absolute ;  any  effort  to  accept  any  part  of  the 
offer,  or  to  qualify  the  same  in  any  way,  constitutes  merely  a  new 
offer  on  the  part  of  the  original  offeree  to  the  original  offerer, 
which  the  latter  may  accept  or  not,  ^s  he  sees  fit. 

Capacity  of  Parties. 

Of  Natural  Persons. — As  we  have  seen  before,  every  contract 
must  have  its  origin  in  voluntary  assent  of  the  parties,  in  true 
agreement.  There  are  some  classes  of  natural  persons  that  are 
recognized  or  regarded  by  law  as  wholly  or  partially  incapable  of 


OUTLINE   OF   THE   LAW    OP   CONTRACTS.  585 

giving  such  voluntary  assent,  and,  therefore,  as  incapable  of  mak- 
ing a  valid  contract. 

The  presumption  is  always  in  favor  of  contractual  capacity; 
and,  if  incapacity  of  any  kind  is  relied  upon  as  a  defense,  it  must 
be  pleaded  and  proved  by  the  party  relying  on  it. 

Natural  persons  whose  contractual  capacity  is  more  or  less  lim- 
ited are: 

1.  Aliens. 

2.  Infants. 

3.  Lunatics,  idiots,  and  drunken  persons. 

4.  Married  women. 

Allots. — An  alien,  in  the  United  States  ordinarily  has  the  same 
capacity  to  contract  as  a  citizen,  so  far  as  personal  property  is 
concerned.  As  to  contracts  with  reference  to  land,  different  stat- 
utory disabilities  exist  in  different  States. 

Infants. — An  infant,  at  Common  Law,  is  a  person  under  the 
age  of  21  years.  In  several  States  the  female  becomes  of  age 
at  18  years  or  upon  marriage.  The  contracts  of  an  infant,  ex- 
cept those  for  necessaries,  are  voidable  at  his  option ;  and  even  in 
the  latter,  he  is  not  bound  to  pay  the  contract  price,  only  a  rea- 
sonable price.  By  the  weight  of  authority,  an  infant  is  bound 
by  his  fraudulent  representations,  and  where  he  represents  him- 
self to  be  of  age,  under  such  circumstances  as  to  amount  to  fraud, 
he  can  not  avoid  the  contract  induced  by  those  representations. 

It  is  held,  in  most  jurisdictions,  that  any  power  of  attorney 
given  by  an  infant  is  an  exception  to  the  general  rule  laid  down 
above,  and  is  void,  not  voidable. 

Where  the  subject  matter  of  the  contract  is  personal  property, 
he  can  avoid  either  before  or  after  coming  of  age. 

Where  the  subject  matter  of  the  contract  is  real  property,  he 
can  not  avoid  his  contract  until  after  he  has  reached  his  majority. 

The  minor  may  disaffirm  either  an  executed  or  executory  con- 
tract : 

(1)  When  the  contract  is  still  executory  on  his  part  he  can 
interpose  infancy  as  a  defense  to  an  action  brought  against  him 
on  the  contract. 

(2)  If  the  infant  has  performed  partly  or  wholly,  but  the  con- 
tract remains  executory  on  the  other  side,  he  can  recover  what  he 
has  given  up,  and  cancel  the  contract. 


586  AMERICAN   ELEMENTARY   LAW. 

(3)  If  both  parties  have  performed  the  contract  wholly  or  in 
part,  the  infant  may  tender  back  what  he  has  received,  and  re- 
cover what  he  has  given. 

(4)  If  the  infant  seeks  to  disaffirm  his  contract,  he  must  return 
the  consideration,  if  still  under  his  control ;  if  he  has  disposed  of 
same,  after  reaching  his  majority,  he  can  not  disaffirm,  unless  he 
can  return  consideration;  if  he  has  dissipated  same  during  his 
minority,  he  may  disaffirm,  without  returning  what  he  had  re- 
ceived. 

(5)  The  infant  must  avoid  the  contract  within  a  reasonable 
time  after  coming  of  age,  otherwise  his  silence  will  be  taken  as 
an  affirmance. 

"What  is  a  reasonable  time  is,  in  each  case,  a  question  of  fact, 
and  has  been  said  to  be  "such  a  period  as,  in  view  of  all  the  at- 
tending facts,  would  rebut  any  presumption  of  an  intention  to 
disaffirm." 

(6)  He  can  not  disaffirm  the  contract,  if  he  has  once  ratified 
it,  after  coming  of  age,  either  expressly,  or  by  act  clearly  evinc- 
ing an  intention  to  ratify  it. 

(7)  He  may  disaffirm  expressly,  or  by  act  clearly  evincing  an 
intention  to  disaffirm. 

An  infant  is  liable  for  necessaries  purchased,  but  can  not  be 
compelled  to  pay  therefor  more  than  the  reasonable  value.  If 
the  contract  price  exceed  reasonable  value,  he  can  not  be  held 
to  pay  contract  price. 

What  are  necessaries,  is  a  mixed  question  of  law  and  fact,  de- 
pending upon  the  position,  training,  social  standing,  means,  etc . 
of  the  infant. 

If  the  infant  be  emancipated,  he  can  contract  as  an  adult.  So 
if  his  disabilities  have  been  removed. 

Lunatics,  Idiots  and  Drunkards. — The  agreements  of  an  idiot,  a 
lunatic,  or  a  person  too  drunk  to  be  able  to  give  his  voluntary  as- 
sent thereto,  are  voidable  unless  they  be  for  necessaries,  or  un- 
less the  sane  person  did  not  know  of  the  other  party's  insan- 
ity or  idiocy,  and  the  contract  is  so  far  executed  that  the  parties 
can  not  be  put  in  statu  quo.  If  one  of  the  parties  has  been  de- 
clared insane,  an  idiot,  or  an  habitual  drunkard,  under  the  pro- 
visions of  a  statute  the  presumption  is  that  the  contract  was  not 


OUTLINE  OF   THE  LAW   OP   CONTRACTS.  587 

made  in  a  lucid  moment.  Otherwise,  the  burden  of  proving  the 
disability  is  on  the  party  setting  it  up. 

Married  Women. — At  Common  Law  married  women  have  no 
power  to  bind  themselves  by  contract.  The  wife  is  the  agent  by 
necessity  of  the  husband  and  as  such  can  bind  him  for  neces- 
saries for  herself  and  children.  She  is  also  presumptively  her 
husband's  agent  in  the  conduct  of  the  ordinary  domestic  affairs 
and  can  bind  him  by  contracts  with  regard  thereto.  In  each  of 
these  instances,  the  woman  exercises  the  contractual  power  of  her 
husband.    So  they  constitute  no  exception  to  the  rule  above  stated. 

This  rule  of  the  Common  Law  has  been  very  greatly  modified 
in  most,  if  not  in  all,  of  the  States  of  the  Union.  All  these  modi- 
fications have  been  enlargements  of  the  married  woman's  power. 
In  many  of  the  States  married  women  now  have  extensive  con- 
tractual capacity ;  in  some  they  have  practical  control  over  their 
individual  property  of  all  kinds;  in  some  they  can  conduct  mer- 
cantile business  either  singly  or  as  members  of  a  firm;  in  many 
they  can  hold  stock  in  corporations.  In  the  States  of  the  South- 
west and  of  the  Pacific  Coast  the  old  Civil  Law  doctrines  of  sep- 
arate and  community  property  of  the  spouses,  modified  by  stat- 
utes, are  in  force.  It  is  impossible  to  systematize  and  summarize 
all  of  these  various  statutory  modifications  of  the  Common  Law 
and  Civil  Law  rules.  The  law  of  each  jurisdiction  on  this  sub- 
ject must  be  consulted. 

Of  Corporations. — A  corporation  is  an  artificial  person  created 
by  the  law  and  deriving  its  power  from  the  law.  The  power  of  a 
corporation  to  contract  is  given  by  the  general  laws  of  the  State, 
and  is  limited  to  the  scope  of  the  purpose  of  its  creation. 

Corporations  have  three  general  classes  of  powers : 

(1)  Those  incident  to  corporate  existence. 

(2)  Those  expressly  conferred  by  law. 

(3)  Those  implied  as  reasonably  necessary  to  carry  out  the  ex- 
press powers. 

The  power  to  contract  to  some  extent  is  inherent  in  the  idea  of 
a  private  corporation.  What  may  be  done  under  this  power  by 
any  particular  corporation  depends  largely  on  the  nature  and  the 
purpose  of  the  corporation.  The  express  powers  of  a  corporation 
depend  upon  the  terms  of  its  charter,  which,  as  we  have  seen. 


588  AMERICAN   ELEMENTARY   LAW. 

consists  of  the  act  of  incorporation,  where  the  company  is  cre- 
ated by  special  law,  and  of  the  articles  of  association  and  the  ap- 
plicable terms  of  the  statute  when  created  under  a  general  en- 
abling act.  The  implied  powers  are  those  reasonably  incident  to 
the  express  powers  conferred  by  the  charter  in  the  particular 
case. 

Any  contract  made  by  a  corporation  either  through  its  stock- 
holders, directors,  general  officers,  subordinate  officers,  or  agents, 
within  the  limit  of  any  of  the  three  classes  of  powers  above  re- 
ferred to  is  binding  upon  the  corporation. 

If  a  corporation  shall  attempt  to  enter  into  any  contract  not 
within  one  or  the  other  of  the  above  powers,  the  attempt  is  ultra 
vires,  and  its  legal  results  will  depend  upon  the  circumstances. 
If  the  agreement  has  been  fully  performed,  ordinarily  the  rights 
of  parties  under  it  will  not  be  disturbed.  If  the  agreement  has 
been  performed  on  one  side  and  not  on  the  other,  the  party  who 
has  not  performed  will  either  be  compelled  to  perform  or  to  put 
the  other  party  in  statu  quo,  as  is  most  just  under  all  the  circum- 
stances. If  the  agreement  is  entirely  unperformed,  neither  party 
can  enforce  performance  nor  recover  damage  for  breach. 

The  effect  of  ceasing  to  do  business  by  a  corporation  and 
abandoning  the  corporate  enterprise,  by  the  better  opinion,  is, 
instanter,  to  destroy  the  power  of  the  corporation  to  enter  into 
contracts.  Its  affairs  must  be  wound  up  under  the  rules  govern- 
ing the  closing  out  of  dissolved  and  insolvent  corporations.  In 
some  jurisdictions  this  is  accomplished  by  means  of  receivership 
in  some  competent  court ;  in  other  jurisdictions,  the  last  board  of 
directors  are  constituted  trustees  to  take  charge  of  the  assets  and 
wind  up  the  affairs  of  the  concern. 

Consideration. 

Necessity  For. — At  Common  Law  consideration  is  necessary  to 
support  all  simple  contracts;  that  is,  all  contracts  not  of  record 
or  under  seal. 

So-called  contracts  of  record  differ  so  greatly  from  the  ordi- 
nary contracts  in  the  business  world  that  they  can  scarcely  be  re- 
garded as  within  our  present  subject.  They  pertain  more  to  the 
law  of  procedure  and  the  doctrines  of  res  adjudicata. 

Contracts  under  seal,  it  is  said,  do  not  require  consideration. 


OUTLINE  OF   THE   LAW   OF   CONTRACTS.  589 

Seemingly  the  prevailing  doctrine  in  America  is  that  the  seal  im 
ports  or  satisfactory  proves  consideration,  and  that  if  a  sealed 
instrument  in  fact  is  not  supported  by  consideration  at  the  time 
it  is  executed,  or  if  after  execution,  the  consideration  fails,  by 
proper  pleading  and  proof,  these  facts  may  be  taken  advantage 
jf  to  avoid  the  agreement.  If  this  be  not  true  as  to  agreements 
required  to  be  sealed  at  Common  Law,  it  certainly  is  the  prevail- 
ing doctrine  as  to  contracts  which  are  required  to  be  sealed  only 
by  reason  of  some  statute. 

What  is  Consideration. — Considerations  are  spoken  of  as  good 
and  valuable. 

Good  consideration  consists  in  natural  love  and  affection  or 
blood  relationship.  It  is  really  more  akin  to  motive  than  to  ac- 
tual consideration.  It  is  never  recognized  as  sufficient  to  sup- 
port an  executory  simple  contract. 

Valuable  consideration  is  a  much  more  important  matter.  It 
has  been  defined  in  many  ways.  Mr.  Anson  says  in  substance 
that  a  valuable  consideration  is  something  done  or  forborne  or 
suffered,  or  something  promised  to  be  done,  forborne  or  suffered 
by  the  promisee  on  account  of  the  promise  made  to  him. 

Mr.  Hughes  in  his  work  on  contracts  says:  "A  valuable  con- 
sideration is  a  benefit  to  the  promising  party  or  to  a  third  person 
at  his  request ;  or  an  injury,  loss,  charge,  or  inconvenience,  or  the 
"vctual  risk  thereof  to  the  party  promised." 

A  careful  study  and  comparison  of  these  two  definitions  will 
?ive  an  accurate  idea  of  the  law's  conception  of  consideration. 

Consideration  differs  from  motive  in  several  respects.  Motive, 
is  such,  is  always  ex  parte.  It  induces  the  one  party  to  act  but 
is  not  taken  into  consideration  by  the  other.  If  any  particular 
inducement,  which  would  be  motive  merely  while  operating  upon 
the  mind  of  one  of  the  parties,  becomes  so  connected  with  and 
embodied  in  the  agreement  as  to  make  it  a  mutual  matter  operat- 
ing alike  on  both  parties,  it  would  cease  to  be  motive  simply  and 
become  consideration.  If  a  man  needs  a  thing  and  desires  to  buy 
it  to  supply  this  need,  his  sense  of  need  is  the  motive  inducing 
him  to  buy  but  it  is  no  part  of  the  consideration  for  the  purchase. 
The  consideration  in  such  case  would  be  the  money  that  he  paid 
on  the  one  hand,  and  the  transfer  of  the  title  to,  and  delivery  of 
the  thing  on  the  other.     If,  however,  he  makes  known  the  speci 


590  AMERICAN  ELEMENTARY  LAW. 

fic  need  and  the  purpose  for  which  he  desires  to  buy  and  the  seller 
says  ' '  I  will  sell  you  a  thing  which  will  supply  that  need  and  ac- 
complish that  purpose,"  this  mutual  appreciation  of  the  mo- 
tive and  acceptance  of  it  and  incorporating  it  into  the  contract 
changes  it  from  simple  motive  into  legal  consideration. 

An  existing  moral  obligation  such  as  gratitude,  can  not  furnish 
the  consideration  of  a  valid  contract,  except  in  the  one  class  of 
cases  where  there  has  been  a  pre-existing  legal  obligation  which 
can  not  any  longer  be  asserted.  For  example :  A  owed  B  a  debt, 
which  is  now  barred  by  limitation,  and  B  now  has  no  remedy 
by  which  to  collect  it.  A  promise  (in  writing,  as  recognized  by 
the  statute  formerly  cited)  from  A  to  B  to  pay  the  debt  will  be 
supported  by  the  previous  debt,  because  of  the  legal  obligation 
which  once  existed.  The  same  is  true  if  the  debtor  has  been  re- 
lieved by  discharge  in  bankruptcy. 

Adequacy. — So  long  as  there  is  some  consideration  that  has  a 
money  value,  even  though  slight,  it  will  support  a  promise,  in  the 
absence  of  fraud,  mistake,  accident,  or  undue  influence.  Inade- 
quacy of  consideration,  if  very  marked,  may  be  evidence  which 
has  some  effect  in  establishing  fraud,  etc.,  but,  of  itself,  will  not 
be  ground  for  avoiding  the  contract.  Illustrations :  A  note  exe- 
cuted in  compromise  of  a  doubtful  claim  is  based  upon  valuable 
consideration,  even  though  it  should  afterward  transpire  that  the 
claim  was  not  good. 

Extinguishment  of  a  bona  fide  debt  is  a  valuable  consideration. 
Extension  of  time  on  a  note  is  also. 

Consideration  Must  Be  Legal. — A  consideration  that  is  against 
public  policy,  or  public  morality,  or  is  prohibited  by  statute,  can 
not  support  a  contract. 

Consideration  May  Be  Executed  or  Executory,  But  Not  Past. — 
An  executed  consideration  exists  where  "one  of  the  two  parties 
has,  either  in  the  act  which  constitutes  the  offer  or  the  act  which 
constitutes  the  acceptance,  done  all  that  he  is  bound  to  do,  under 
the  contract,  leaving  an  outstanding  liability  on  the  other  party 
only."     (Anson,  112.) 

An  executory  consideration  is  one  which  consists  in  a  promise 
to  do  or  to  forbear  in  the  future. 

A  past  consideration  is  some  act  done,  or  forbearance  suffered, 
by  one  in  time  past,  by  which  another  has  been  benefited  without 


OUTLINE  OP  THE  LAW   OF   CONTRACTS.  591 

incupring  thereby  any  legal  liability.  If,  afterward,  the  bene- 
ficiary make  a  promise  to  the  other  to  compensate  him  for  such 
set  or  forbearance,  the  promise  is  invalid,  unless  it  has  some  new 
consideration  to  support  it. 

Negotiable  Instruments. — It  is  sometimes  said  that  negotiable 
instruments  are  an  exception  to  the  rule  that  no  contract  can 
stand  unless  supported  by  consideration.  This  is  not,  ir.  aL/ 
real  sense,  time.  Want,  or  failure,  or  partial  failure  of  considera- 
tion may  always  be  plead  in  defence  of  an  action  on  a  negotiable 
instrument,  as  between  the  original  parties,  "or  when  it  (the  in- 
strument) shall  have  been  assigned  or  transferred  after  the  ma- 
turity thereof ;  or  when  the  defendant  may  prove  a  knowledge  of 
such  want  or  failure  of  consideration  on  the  part  of  the  holder 
prior  to  such  transfer." 

Form. 

Contracts  May  Be  Either  Written  or  Parol. — In  English  Law, 
two  aspects  or  species  of  written  contracts  are  recognized 
(1)  The  specialty,  or  contract  under  seal,  and  (2)  the  simple  con- 
tract, not  under  seal.  The  difference  between  the  two,  at  Com- 
mon Law,  is  very  great.  The  former,  being  an  instrument  of 
greater  solemnity  than  the  latter,  proves  itself,  and  does  not  re- 
quire a  consideration.  The  simple  contract,  on  the  other  hand, 
could,  fo*"  a  long  time,  only  be  enforced  at  all  where  it  was  proven 
by  evidence  aliunde.  This  is  not  now  the  case  in  England.  A 
simple  contract  can  there  be  enforced,  though' wholly  executory; 
consideration,  of  course,  is  necessary. 

It  is  a  general  rulp  that  a  parol,  or  verbal,  contract  is  as  bind- 
ing and  valid  as  a  written  one ;  but  there  are  certain  exception? 
declared  by  express  legislative  enactment. 

Contracts  Required  to  be  in  Writing. — Agreements  which  are 
required  to  be  in  writing  at  Common  Law  are  very  few  indeed. 
There  are,  however,  a  number  of  statutory  provisions  requirinp 
agreements  of  certain  kinds  to  be  in  writing  in  order  to  be  en 
forceable.  The  most  important  statute  on  this  subject  is  known 
as  the  Statute  of  Frauds.  The  English  statute  on  this  subject 
(29  Charles  II,  Chap.  3)  is  the  basis  of  all  the  American  legisla 
tion  thereon.  The  statutes  of  the  several  States  are  in  the  main 
quite  similar,  though  few,  if  any,  of  them  are  identical.     As  they 


592  AMERICAN   ELEMENTARY   LAW. 

all  grow  out  of  the  English  statute,  we  will  base  our  discussion 
on  that,  modifying  it  so  as  to  be  fairly  applicable  to  all  of  its 
American  followers. 

The  contracts  within  these  statutes  are  of  several  kinds  as  fol- 
lows : 

(1)  Contracts  for  the  sale  of  real  estate,  or  any  interest 
therein,  or  of  the  lease  of  real  estate  for  a  term  specified  in  the 
statute,  varying  in  different  States  from  one  to  three  years. 

(2)  Agreements  by  an  executor  or  administrator  to  pay  the 
debts  of  the  estate  out  of  his  own  property. 

(3)  Agreements  by  one  person  whereby  he  becomes  chargeable 
for  or  promises  to  answer  for  the  debt,  default,  or  miscarriage  of 
another. 

(4)  Agreements  made  upon  consideration  of  marriage. 

(5)  Agreements  not  to  be  performed  within  one  year  from  the 
making  thereof. 

(6)  Contracts  for  the  sale  of  goods,  wares,  or  merchandise  of 
a  specified  amount.  In  this  last  case,  the  necessity  for  written 
memorandum  is  obviated  by  either  delivery  of  the  goods  in  whole 
or  in  part,  or  the  payment  of  earnest  money  or  part  payment  of 
the  purchase  price. 

The  reason  for  the  requirement  of  the  written  memoranda  as 
evidence  of  the  sale  of  land  or  of  interest  therein,  or  of 
long  continuing  leases  is  readily  apparent.  Land  is  the 
most  permanent  kind  of  property  and  rights  in  it  to  be  en- 
joyed in  the  distant  future  are  necessarily  dependent  upon  pres- 
ent transactions  affecting  its  title,  and  permanent  evidence  of 
these  transactions  is  essential  to  the  peace  and  well  being  of  future 
owners.  The  English  statute  covers  sales  of  lands  and  of  all  in- 
terests in  and  concerning  them.  This  is  broader  than  a  number 
of  the  American  statutes  which  are  limited  to  sales  of  lands  with- 
out including  interests-  in  or  concerning  them. 

The  difference  between  the  two  is  illustrated  in  agreements 
warranting  title  to  land.  Under  the  English  statutes,  and  those 
following  its  phraseology,  a  parol  undertaking  to  warrant  the 
title  to  land  is  not  good.  In  States  in  which  the  statute  is  lim- 
ited to  the  sale  or  lease  of  land,  such  an  undertaking  is  good. 

The  purpose  of  this  statute  is  to  prevent  fraud  and  the  courts 
have  wisely  held  that  its  terms  ought  not  to  be  so  rigidly  enforced 


OUTLINE   OF   THE  LAW   OF    CONTRACTS.  593 

as  to  make  it  an  instrument  of  harsh  injustice.  Hence  it  is  held 
that  if  land  be  sold  by  parol  and  the  purchaser  is  put  in  posses- 
sion and  pays  the  purchase  price  and  makes  improvement  on  the 
land,  the  parol  agreement  will  be  enforced.  To  permit  the  seller 
to  reclaim  the  property  under  such  circumstances  would  defeat 
the  very  purpose  for  which  the  statute  was  enacted.  All  these 
facts,  however,  must  concur  to  take  the  transaction  out  of  the 
statute. 

To  bring  a  lease  within  the  statute  the  agreement  must  show 
that  it  is  for  a  longer  term  than  the  statutory  limitation.  Hence, 
a  lease  for  one  year  where  the  statute  fixes  that  limit  with  the 
privilege  of  continuing  for  two  years  does  not  come  within  the 
statute.     The  term  might  end  with  the  first  year. 

The  second  provision  relates  to  promises  which  undertake  "To 
charge  any  executor  or  administrator,  upon  any  promise,  to  an- 
swer any  debt  or  damage  due  from  his  testator  or  intestate  out 
of  his  own  estate." 

This  provision  is  self-explanatory,  and  is  simply  a  protection  to 
executors  and  administrators  against  paying,  from  their  own 
pockets,  any  debt  due  from  the  estate  of  their  testator  or  intestate. 

The  third  relates  to  agreements  "To  charge  any  person,  upon 
a  promise,  to  answer  for  the  debt,  default,  or  miscarriage  of  an- 
other." 

Contracts  of  guaranty  or  suretyship  fall  within  the  statute;, 
contracts  of  indemnity  do  not.  The  test,  generally  speaking,  is 
this:  Is  the  promisor  totally  unconnected  with  the  transaction, 
except  by  means  of  his  promise  to  pay  the  debt  of  another,  or  is 
he  himself  to  derive  some  benefit  from  the  contract?  In  the  for- 
mer case,  the  contract  is  one  of  guaranty;  in  the  latter,  one  of 
indemnity. 

A  more  minute  analysis  supplies  the  following  rules: 

In  order  to  bring  the  contract  within  the  statute  so  as  to  make 
writing  necessary. 

( 1 )  The  promise  must  be  made  to  a  person  to  whom  the  third 
person  is  liable. 

(2)  The  liability  of  such  third  person,  which  the  promisor 
agrees  to  assume,  or  assure,  must  have  an  existence,  present  or 
prospective. 

(3)  The  agreement  of  the  promisor  must  not  be  such  as  extin- 

38 


594  AMERICAN   ELEMENTARY   LAW. 

guishes  when  made  the  liability  of  the  third  person  to  the  prom- 
isee. 

(4)  The  promise  must  be  to  answer  for  the  debt  or  liability  of 
the  third  person  out  of  the  promisor 's  property,  not  out  of  that  of 
the  third  person,  or  of  another. 

(5)  The  promise  must  not  be  made  under  circumstances  under 
which  the  promisor  is  subserving  some  interest  or  purpose  of  his 
own. 

The  provision  regarding  agreements  made  upon  consideration 
of  marriage  does  not  need  elucidation. 

The  next  subdivision  of  the  statute  relates  to  contracts  "not  to 
be  performed  within  the  space  of  one  year  from  the  making 
thereof." 

This  clause  applies  only  to  a  contract  which  can  not  be  per- 
formed within  one  year.  If  the  agreement,  from  its  terms,  may 
or  may  not  be  performed  within  one  year,  it  is  not  within  the  stat- 
ute, and  may  be  made  by  parol. 

Also,  where  either  one  of  the  parties  to  the  contract,  from  the 
terms  thereof,  may  perform  his  part  alone  within  one  year,  the 
contract  is  not  within  the  statute,  even  though  the  other  party 
can  not  perform  his  part  within  the  year. 

It  follows  as  of  course,  from  the  above,  that  every  contract 
which  has  been  wholly  executed  on  one  side  is  without  the  stat- 
ute. 

It  has.  however,  been  repeatedly  decided  that  a  contract  can  not 
be  made  by  parol  to  begin  in  futuro  and  extend  to  a  time  more 
than  one  year  from  the  time  of  making.  This  does  not  apply  to 
contracts  of  lease,  because  they  are  expressly  provided  for  in  the 
fourth  section  of  the  article. 

The  last  provision  of  the  Statute  of  Frauds  relates  to  the  sales 
of  goods,  wares,  and  merchandise. 

The  word  sales  is  not  used  here  in  the  technical  sense  of  a  pres- 
ent transfer  of  the  title  to  personal  property  for  a  price  in  money. 
It  is  broader  than  this  in  two  particulars;  first,  it  includes  all 
transfers  of  the  title  to  personal  property  without  reference  to 
whether  the  consideration  be  money  or  other  thing  of  value;  sec- 
ond, it  includes  executory  sales,  usually  known  as  agreements  to 
sell,  in  which  title  is  to  pass  not  in  the  present  but  in  the  future. 

Goods,  wares  and  merchandise  are  the  terms  most  frequents 


OUTLINE  OF   THE   LAW   OP    CONTRACTS.  595 

used  in  the  Statutes.  They  are  ordinarily  construed  to  include 
all  personal  property  whatsoever,  whether  corporeal  or  incor- 
poreal, in  possession  or  in  action.  The  statutes  in  some  of  the 
States  expressly  include  things  or  choses  in  action,  but  the  con- 
struction seems  to  be  the  same  with  or  without  these  words. 

Each  statute  mentions  some  value  which  the  thing  sold  must 
have  in  order  for  the  statute  to  apply.  Fifty  dollars  is  the  most 
usual  minimum  in  the  United  States. 

This  clause  in  the  statute  is  not  absolute  and  the  necessity  for 
the  written  memorandum  is  obviated  by  the  seller  delivering  to 
the  buyer  and  the  buyer  accepting  from  the  seller  all  or  a  part  of 
the  thing  sold,  or  by  the  buyer  paying  to  the  seller  all  or  a  part 
of  the  purchase  price  or  something  by  the  way  of  earnest  money. 
If  either  of  these  is  done  there  is  no  necessity  for  writing. 

What  is  a  Written  Contract  Under  the  Statute  of  Frauds? — ■ 
We  have  enumerated  the  classes  of  contracts  to  which  the  statute 
applies.  The  next  question  is:  "What  does  the  statute  require 
with  reference  to  such  contracts? 

The  agreement,  or  some  memorandum  thereof,  must  be  in  writ- 
ing, signed  by  the  party  to  be  charged  therewith,  or  by  some  per- 
son by  him  thereunto  lawfully  authorized.  In  order  that  the 
memorandum  may  be  sufficient  to  meet  the  requirements  of  the 
statute,  it  should  (1)  give  the  names  of  the  parties  to  the  con- 
tract; (2)  embody  the  substance  of  the  terms  agreed  upon-, 
(3)  fix  the  identity  of  the  subject  matter  of  the  agreement;  (4)  it 
must  be  signed  by  the  party  to  be  charged,  or  his  agent. 

This  memorandum  need  not  appear  wholly  in  one  document  or 
paper,  but  may  consist  of  various  letters  or  papers,  which  must, 
however,  be  connected  and  complete.  Parol  evidence  is  permis- 
sible to  connect  different  documents,  if  they  refer  to  one  another 
and,  when  taken  together,  furnish  a  complete  memorandum. 

Effect  of  Noncompliance. — The  effect  of  noncompliance  with 
the  statute  is  to  render  the  agreement  unenforcible  at  law.  It 
can  not  be  said  to  render  the  agreement  either  void  or  voidable, 
but  since  the  agreement  can  not  be  proved  by  parol  testimony,  it 
simply  renders  the  party  seeking  to  enforce  same  incapable  ^f 
establishing  any  right  under  it. 


CHAPTER  V. 

CONTRACTS    (CONTD.) 
GENUINENESS  OP  ASSENT. 

"Want  of  genuine  assent  may  exist  in  agreements  where  there 
has  been  an  apparent  assent.  It  is,  in  any  case,  due  to  one  of 
the  following: 

(1)  Mistake. 

(2)  Misrepresentation  or  Fraud. 

(3)  Duress. 

(4)  Undue  influence. 

Mistake. 

Mistake  is  an  erroneous  conception  or  belief.  For  the  law  to 
take  cognizance  of  mistake  it  must  induce  conduct  which  is  di- 
rectly injurious  to  the  party  mistaken.  It  is  sometimes  quite 
difficult  to  distinguish  between  mistake  and  fraud.  The  line  of 
separation  seems  to  be  that  fraud  is  applied  to  misconception  for 
which  the  party  getting  the  advantage  is  responsible,  that  is,  to 
deception  either  induced  by  him,  or  if  not  so  induced,  of  which 
he  has  purposely  availed  himself,  while  mistake  is  limited  to  er- 
roneous impressions  which  the  party  obtaining  the  advantage  of 
is  in  no  way  responsible  for. 

Mistake  is  spoken  of  as  of  two  kinds,  mistake  of  law  and  mis- 
take of  fact. 

Mistake  of  Law. — Mistake  of  law  is  a  misapprehension  of  the 
law  applicable  to  the  agreement,  or  as  to  the  legal  effect  of  the 
agreement,  the  facts  of  the  transaction  being  fully  understood. 
The  law  here,  as  elsewhere,  means  the  law  in  force  within  the 
jurisdiction  where  the  agreement  is  entered  into.  All  foreign 
laws  are  facts.  A  mutual  mistake  of  law  is  never  relieved  against ; 
a  unilateral  mistake  is  never  relieved  against  unless  it  be  on  some 
material  point  and  has  directly  resulted  in  injury  to  the  party 


GENUINENESS  OP   ASSENT.  597 

mistaken.  The  cases  are  very  rare  even  under  these  conditions, 
as  the  very  general  rule  is  that  everyone  is  presumed  to  know  the 
law  and  ignorance  of  the  law  does  not  excuse. 

Mistake  of  law  does  entitle  to  relief,  however,  where  the  in- 
jured party,  by  reason  of  his  erroneous  ideas  of  the  law,  mis- 
takes his  legal  rights  in  the  subject  matter  of  the  contract  so  that 
he  does  not  rightly  apprehend  the  nature  and  extent  of  the  rights 
existing  in  him  and  about  which  he  is  negotiating.  If  he  is  aware 
of  his  legal  rights,  no  mistake  as  to  the  legal  effect  of  the  contract 
upon  his  known  rights  will  entitle  him  to  relief. 

It  is  customary  to  speak  of  two  other  conditions  as  mistakes  of 
law  entitling  to  relief.  These  come  within  or  near  to  the  division 
line  between  mistake  and  fraud.  They  may  well  be  treated 
under  either. 

The  first  of  these  are  mistakes  of  law  induced  by  the  false 
statements  of  the  other  party  to  the  transaction.  As  the  law  pre- 
sumes everyone  to  know  its  rules  and  their  effect  upon  his  rights, 
it  does  not  look  with  favor  upon  the  claim  of  any  person  who  says 
he  has  been  misled  or  deceived  as  to  the  law,  and  requires  strict 
proof  of  ignorance  of  the  law  on  the  part  of  the  one  claiming  re- 
lief, and  of  facts  which  entitle  him  to  rely  upon  the  other  for 
information  regarding  it.  If  these  facts  are  shown,  and  the  per- 
son undertaking  to  give  the  information  makes  material  misstate- 
ments as  to  the  law  by  which  the  other  party  is  actually  deceived 
and  is  thus  induced  to  act  to  his  injury,  the  law  will  give  relief. 

The  other  cases  spoken  of  as  entitling  to  relief  on  account  of 
mistake  of  law  are  scrutinized  even  more  closely.  These  are  cases 
in  which  the  party  complaining  was  really  ignorant  of  some  ma- 
terial matter  of  law  and  his  ignorance  was  taken  advantage  of  by 
the  other  party,  purposely  and  intentionally.  Here  there  has 
been  no  deception  practiced  by  the  party  getting  the  advantage. 
He  simply  knows  of  the  material  misconception  in  the  mind  of  the 
other  party  and  purposely  takes  advantage  of  it.  It  is  a  condition 
analogous  to  non-disclosure  in  the  law  of  fraud  and  relief  is  never 
granted  unless  there  is  something  in  the  circumstances  that  im- 
posed upon  the  person  getting  the  advantage,  the  duty  of  dis- 
closing the  law  to  the  other  party. 

Mistake  of  Fact. — A  mistake  of  fact  is  the  ignorance,  or  forget- 
fulness,  of  a  fact,  pnst  or  present  or  the  belief  in  the  existence  of 


598  AMERICAN  ELEMENTARY   LAW. 

a  fact,  past  or  present,  which  did  not  or  does  not  exist.     The  mis- 
take may  be 

(1)  as  to  the  person  with  whom  the  contract  is  made,  as  if  A 
should  pay  money  to  B,  thinking  he  was  C.  with  whom  he  had  re- 
lations ; 

(2)  as  to  the  nature  of  the  transaction,  as  if  A  should  sign  a 
deed  to  B,  thinking  it  was  only  a  mortgage ; 

(3)  as  to  the  existence  of  the  subject  matter,  as  if  A  should  sell 
B  a  horse  which  should  afterward  turn  out  to  have  been  dead  at 
the  time  of  sale ; 

(4)  as  to  the  identity  of  the  subject  matter,  as  if  A  should  un- 
dertake to  sell  B  a  horse,  B  understanding  that  it  was  another; 

(5)  as  to  the  terms  and  conditions  offered  and  accepted,  as  a 
misunderstanding  as  to  the  price  agreed  upon. 

A  mistake  of  fact,  to  be  relieved  against,  must  be  mutual,  and 
material ;  or,  if  unilateral  it  must  be  material  and  not  due  to  the 
party's  own  negligence;  or  it  must  be  made  under  circumstances 
which  give  rise  to  a  presumption  of  fraud,  undue  influence,  or 
abuse  of  confidence. 

Misrepresentation  and  Fraud. 

The  misrepresentation  against  which  the  law  will  relieve  must 
be  false  representation  as  to  a  material  fact,  past  or  present,  as  to 
which  the  other  party  has  been  deceived  and  so  induced  to  act.  to 
his  injury.  If  there  is  present  in  the  mind  of  the  party  making 
the  representation  a  knowledge  of  the  falsity,  or  a  reckless  dis- 
regard of  the  truth  or  falsity,  of  the  representation  and  an  inten- 
tion to  deceive  the  other  party  thereby  and  have  him  act  on  it. 
then  the  misrepresentation  amounts  to  fraud.  The  two  terms  are 
frequently  used  as  interchangeable  in  the  decisions,  but  the  dis- 
tinction is  practically  recognized.  The  first  is  very  often  called 
fraud,  or  " equitable  fraud."  and  the  second  "actionable  fraud," 
or  fraud  at  Common  Law.  The  effect  of  misrepresentation  is  to 
give  the  party  who  has  been  deceived  and  suffered  a  right  to  re- 
scission or  cancellation  of  the  contract.  It  may  be  set  up  as  a  de- 
fense to  an  action  on  the  contract.  The  effect  of  fraud  is  the 
same,  except  that  in  addition  to  the  remedies  mentioned  it  gives  a 
right  to  damages  for  the  injury  suffered. 


GENUINENESS   OF   ASSENT.  599 

Elements  of  Fraud,  or  Deceit. 

(1)  A  representation  which  must  he 

(2)  False, 

(3)  As  to  a  material  fact 

(4)  Made  with  knowledge  of  its  falsity,  or  a  reckless  disregard 
as  to  its  truth  or  falsity. 

(5)  Made  with  intent  to  influence,  and  actually  deceiving. 

(6)  Acted  upon  by  the  other  party,  to  his  injury. 
Representation. — The  subject  matter  of  the  representation  is 

usually  immaterial ;  that  is,  it  may  be  as  to  personal  property,  the 
title  to  real  estate,  the  solvency  or  credit  of  the  person  making  it 
or  of  another,  etc.  The  representation  may  be  made  by  writing 
or  parol,  by  words  or  conduct.  In  the  following  cases  silence,  or 
nondisclosure  of  the  truth,  will  constitute  a  representation : 

(1)  "Where  active  steps  are  taken  to  prevent  discovery  of  the 
truth. 

(2)  Where,  though  the  representation  made  is  true,  so  far  as 
it  goes,  the  suppression  of  other  pertinent  facts  renders  it,  in  fact, 
misleading  and  untrue. 

(3)  Where,  from  the  peculiar  relations  existing  between  the 
parties,  the  law  regards  the  nondisclosure  by  one  of  them  as  a  rep- 
resentation that  the  suppressed  facts  do  not  exist. 

False. — The  representation  must  be  false  in  fact,  as  well  as  in 
intention.  If  the  representation  be  partly  true  and  partly  false, 
it  is  fraudulent. 

A  representation  may  be  false  in  fact,  though  the  words  used 
in  making  the  statement  are  literally  true;  and,  if  so  made  with 
an  intent  to  deceive,  and  it  does  actually  deceive,  it  is  regarded  as 
false. 

A  representation  may  be  true  at  the  time  it  was  made,  and  sub- 
sequently become  untrue  to  the  knowledge  of  the  party  making  it 
before  it  is  acted  upon  by  the  other  party ;  in  such  case,  a  failure 
to  disclose  the  change  of  circumstances  is  equivalent  to  a  false 
representation. 

As  to  a  Material  Fact. — A  false  representation,  to  be  deemed 
fraudulent,  must  be  a  statement  as  to  a  past  or  present  fact,  as 
distinguished  from 

(1)   An  expression  of  opinion  or  belief. 


600  AMERICAN   ELEMENTARY   LAW. 

(2)  A  prediction  or  promise  as  to  the  future.  The  exception 
is  a  promise  made  with  no  intention  to  perform. 

(3)  A  statement  of  the  law.  The  exceptions  are:  false  state- 
ment as  to  the  law  made  by  an  expert  to  one  whom  he  knows  to 
be  ignorant,  or  made  by  one  party  to  another  between  whom  and 
himself  there  is  a  relation  of  trust  and  confidence,  or  made  as  to 
foreign  laws,  which  are  regarded  as  facts. 

Materiality. — The  fact  as  to  which  the  misrepresentation  is 
made  must  be  one  material  to  the  contract. 

Materiality  is  a  mixed  question  of  law  and  fact.  The  follow- 
ing are  some  of  the  principles  that  have  been  applied  in  determin- 
ing it: 

(1)  That  representations  as  to  a  fact  directly  affecting  the  sub- 
ject matter  of  a  contract,  and  without  which  the  contract  would 
not  have  been  made,  are  representations  as  to  a  material  fact. 

(2)  That,  on  the  other  hand,  if  a  person  making  a  contract 
does  not  rely  upon  the  representations  made  by  the  other  party, 
or  if  the  same  are  of  such  a  character  as  to  constitute  no  induce- 
ment to  enter  into  the  contract,  the  represenations  are  not  ma- 
terial, and  do  not  constitute  fraud ;  but 

(3)  That  it  is  not  necessary  that  a  representation,  in  order  to 
be  regarded  as  material,  should  have  been  the  only  inducement  to 
enter  into  the  contract. 

(4)  That,  if  the  representation  is  so  trivial  that  it  could  not 
have  influenced  the  conduct  of  an  ordinarily  prudent  man,  it  is 
not  material. 

(5)  That  representations  as  to  matters  merely  collateral  to  the 
subject  matter  of  the  contract  are  not  material. 

(6)  That,  if  a  false  statement  merely  affects  the  probability 
that  the  contract  will  be  performed,  it  is  collateral,  and  under  the 
rule  just  stated  is  immaterial. 

(7)  It  may  further  be  said  that  the  real  question  is.  not 
whether  the  party  regarded  it  as  material,  but  whether  it  was,  in 
fact,  material ;  so  that  the  fact  even  that  the  party  acted  on  the 
representation  as  material  is  not  always  conclusive  as  to  materi- 
ality of  the  representation  itself. 

Knowledge  of  Falsity.- — This  element  of  fraud  is  not  a  neces- 
sary constituent  of  "equitable  fraud,"  that  is  to  say,  a  court  will, 
in  the  exercise  of  its  equitable  jurisdiction,  grant  a  rescission, 


GENUINENESS   OP   ASSENT.  601 

reformation,  or  cancellation  of  a  contract,  upon  the  one  hand,  or 
refuse  specific  performance,  on  the  other,  because  of  an  innnocent 
misrepresentation,  where  the  same  has  resulted  in  injury  to  the 
other  party. 

It  has,  however,  been  long  regarded  as  established  that  fraud 
does  not  constitute  an  actionable  wrong,  that  is,  can  not  be  the 
basis  for  a  suit  for  damages,  where  this  element  is  lacking.  The 
knowledge  may  be 

(1)  Actual,  where  the  party  consciously  makes  false  statement. 

(2)  Imputed,  where  he  recklessly  states  something  as  true  of 
his  own  knowledge,  not,  in  fact,  knowing  whether  it  be  true  or 
false.  Here  the  law  imputes  to  him  that  knowledge  which  he  has 
falsely  assumed  to  have. 

Intent  to  Deceive  and  Deception. — To  constitute  fraud  at  Com- 
mon Law,  the  representation  must  have  been  made  with  intent  to 
deceive.  In  misrepresentation  in  Equity  it  is  not  required  in 
all  instances  that  the  party  making  the  misrepresentation  shall 
know  its  falsity.  In  such  cases  it  is  confusing  to  say  that  the 
misrepresentation  must  be  made  with  intent  to  deceive.  It  must 
be  made  with  intent  to  influence  and  it  must  in  fact  deceive.  It 
would  be  absurd  to  allow  one  to  avoid  a  contract  on  the  ground  of 
misrepresentations  made  to  him  if,  he,  at  the  time  of  entering  into 
the  agreement,  knew  them  to  be  false,  and  made  the  contract  not- 
withstanding. 

Action  by  the  Deceived  Party. — Not  only  must  the  complaining 
party  have  been  deceived,  but  he  must  have  been  induced  by  this 
deception  to  act  in  such  way  as  to  result  in  injury  to  him.  De- 
ception without  action  could  not  result  in  pecuniary  hurt.  It 
is  equally  essential  that  the  action  induced  should  be  injurious. 

Duress. 

Definition. — The  duress  which  will  entitle  a  party  to  avoid  a 
contract  exists  where  one  party,  by  the  unlawful  act  of  the  other, 
or  of  his  authorized  agent,  or  even  by  the  act  of  some  third  person 
with  beneficiary 's  knowledge,  is  constrained  to  perform  the  act 
sought  to  be  avoided,  under  circumstances  which  deprive  him  of 
the  power  to  exercise  his  free  will  in  the  matter. 

Duress  may  consist  in  actual  restraint  or  violence,  duress  of  im- 
prisonment, or  threatened  restraint  or  violence,  duress  per  minas. 


602  AMERICAN   ELEMENTARY   LAW. 

Duress  of  Imprisonment. — Kestraint  must  be  unlawful. 

(1)  Arrest,  for  improper  purpose,  without  just  cause. 

(2)  Detention  without  lawful  authority,  whether  for  just 
cause  or  not. 

(3)  Arrest  for  just  cause  and  under  proper  process,  but  for 
improper  purpose. 

The  act  sought  to  be  avoided  must  have  been  done  because  of 
the  restraint. 

Duress  Per  Minas. — (a)  The  threatened  injury  may  be 

(1)  To  one's  person  or  liberty. 

(2)  To  one's  husband  or  wife. 

(3)  To  one's  parent  or  child. 

(4)  By  a  few  cases  the  doctrine  has  been  extended  to  cover 
threats  of  injury  to  other  blood  relations — grandmother  and 
grandson ;  aunt  and  nephew ;  sister  and  brother. 

(5)  To  one 's  goods  or  property. 

(6)  In  some  cases  to  surety's  principal,  viz.:  Those  in  which 
the  surety  becomes  such  without  the  knowledge  of  his  principal's 
duress. 

(7)  To  one's  agent,  who  is  induced  to  make  contract.  The 
principle  seems  to  be  based  upon  sound  reason  that  where  one's 
agent  has  been  compelled  to  make  a  contract,  under  circumstances 
amounting  to  duress,  the  principal  should  not  be  bound  by  the 
contract  any  more  than  if  he  had  made  it  personally  under  the 
same  circumstances. 

(b)  Threats  must  be  shown  to  have  coerced ;  they  need  not, 
however,  have  been  present  at  the  time  of  making  the  contract, 
but  the  fear  induced  by  them  must  be  present. 

(c)  Threats  need  not  have  been  sufficient  to  enthrall  the  mind 
of  the  ordinarily  firm  man,  if  they  did  actually  coerce  the  party 
toward  whom  they  were  directed.  It  is  the  better  doctrine,  in 
modern  times,  that  regard  must  be  had.  in  each  case,  to  the  men- 
tal condition,  age.  sex,  etc.,  of  the  party  threatened. 

Effect  of  Duress  Upon  the  Contract. — With  the  exception  to  be 
noted  later,  duress  renders  the  contract  voidable,  at  the  option  of 
the  coerced  party.  He  must,  however,  proceed  to  avoid  within  a 
reasonable  time  after  the  removal  of  the  duress. 

It  is  said  that  the  purported  contract  will  be  absolutely  void, 
if  obtained  under  such  circumstances  that  there  was  no  consent 


GENUINENESS  OP   ASSENT.  603 

whatever,  as  where  one  should  have  his  hand  forcibly  guided  in 
placing  his  signature  to  a  written  instrument,  etc. 

Subsequent  purchasers  can  acquire  rights  under  the  voidable 
contract ;  never  under  the  void. 

Undue  Influence. 

Undue  influence  is  defined  as  "moral  duress,"  and  exists  in 
those  cases  where  one  party  takes  an  unconscientious  advantage 
of  the  other  by  reason  of  the  influence  which  he  has  over  him, 
either  growing  out  of  their  relation  to  each  other,  or  out  of  some 
marked  inequality  in  the  conditions  under  which  they  are  deal- 
ing. 

By  undue  exercise  of  such  influence  is  meant  such  an  exercise 
as  coerces  the  will  and  overcomes  the  judgment  of  one  party  so  as 
to  render  free  and  voluntary  assent  on  his  part  impossible. 

Cases  of  undue  influence  usually  occur  in  transactions  between 
persons  who  bear  to  each  other  a  relation  of  trust  and  confidence, 
but  may  arise  in  transactions  between  strangers,  where  one  of  the 
parties  is  grossly  ignorant,  totally  inexperienced,  or  in  great  per- 
sonal need. 

At  English  Law,  the  existence  of  special  relations  between  the 
parties  raised  a  presumption  of  undue  influence,  which  must  be 
rebutted  by  evidence.  Anson  says  (page  222)  :  "The  court  will 
not,  necessarily,  set  aside  a  gift  or  promise  made  by  a  child  to  its 
parent,  by  a  client  to  his  solicitor,  by  a  patient  to  his  medical  man, 
by  a  cestui  que  trust  to  his  trustee,  by  a  ward  to  his  guardian,  or 
by  any  person  to  his  spiritual  adviser;  but  such  relations  call  for 
proof  that  the  party  benefited  did  not  take  advantage  of  his 
position."  The  rules  of  the  different  States  are  not  uniform  as 
to  this  matter. 

The  effect  of  undue  influence,  like  that  of  duress,  is  to  render 
the  contract  voidable  at  the  option  of  the  injured  party,  within  a 
reasonable  time  after  the  removal  of  the  influence. 

I/egality  of  Object. 

An  agreement  may  have  every  one  of  the  substantial  and  for- 
mal requisites  of  a  contract,  and  yet  not  carry  with  it  the  obliga- 
tion of  a  contract,  by  reason  of  the  fact  that  its  object  is  one  for- 
bidden, or  discouraged,  by  law. 


604  AMERICAN   ELEMENTABY   LAW. 

Those  objects  of  contracts  which  are  forbidden  by  law,  and 
which  vitiate  agreements  into  which  they  enter,  are: 

(1)  Those  forbidden  by  the  Common  Law,  as  constituting  an 
indictable  offense  or  a  civil  injury. 

(2)  Those  forbidden  by  Common  Law,  as  against  public  pol- 
icy. 

(3)  Those  forbidden  by  express  statutory  enactment. 

Of  these,  both  th'e  first  and  second  classes  are  spoken  of  com- 
monly by  our  courts  as  coming  under  considerations  of  public 
policy,  and  we  will  accordingly  so  classify  and  treat  them. 

We  will  consider  illegality  of  object  from  the  following  points 
of  view : 

1.  As  to  the  principles  of  construction  applied  in  determining 
it. 

2.  In  respect  to  its  effect  upon  agreements  otherwise  binding 
and  valid  as  contracts. 

3.  In  respect  to  its  classification. 

Rides  of  Construction. — The  following  are  a  few  of  the  rules 
that  have  been  applied  by  the  courts,  in  the  construction  of  agree- 
ments, to  ascertain  the  legality  of  their  objects : 

(1)  The  presumption  of  the  law  is  in  favor  of  the  legality  of 
the  contract,  as  against  its  illegality,  until  the  latter  is  clearly 
shown. 

(2)  It  follows,  as  a  corollary  of  the  above,  that  where  an 
agreement  is  capable  of  two  interpretations,  under  one  of  which 
it  would  be  legal  and  under  the  other  illegal,  favor  is  always  to 
be  given  to  the  construction  that  renders  it  legal.  If,  however, 
it  is  shown  that  the  intention  of  the  parties  was  in  accord  with 
that  construction  which  renders  it  illegal,  the  agreement  will  not 
be  upheld,  though  on  its  face  capable  of  the  other  construction. 

(3)  Extrinsic  evidence  may  also  always  be  introduced  to  show 
the  real  illegality  of  an  agreement  legal  on  its  face. 

(4)  If  the  illegality  appears  to  the  court,  though  not  set  up 
by  the  defendant,  it  is  the  duty  of  the  court,  sue  sponte,  to  refuse 
to  entertain  the  action. 

(5)  If  a  contract  is  valid  where  executed,  it  is  valid  every- 
where. 

(6)  But  an  agreement  contrary  to  common  principles  of  jus- 
tice, or  of  morality,  can,  in  no  case,  be  enforced. 


GENUINENESS  OF  ASSENT.  605 

(7)  If  an  agreement  is  invalid  where  made,  it  is  invalid  every- 
where. 

(8)  If  legal  where  sued  upon,  it  will  be  presumed  to  be  legal 
where  made,  until  the  contrary  is  proved. 

(9)  A  contract  must  be  unlawful  at  the  time  it  is  made;  other- 
wise it  can  not  be  set  aside  on  the  ground  of  illegality. 

Effect  of  Illegality. — The  effect  of  illegality  of  object  upon  con- 
tracts in  which  it  exists  is  different  in  different  eases,  depending 
on  a  variety  of  conditions.  For  instance :  The  illegality  may  ex- 
ist in  the  subject  matter  of  the  contract,  or  in  the  consideration ; 
it  may  affect  the  whole,  or  only  a  part  of  the  contract,  and  in  the 
latter  case  the  illegal  and  legal  parts  of  the  contract  may  or  may 
not  be  severable ;  the  illegality  may  exist  in  the  immediate  object 
of  the  contract  or  in  its  ultimate  effect  and  purpose ;  and,  in  the 
latter  case,  the  parties  may  be  in  pan  delicto,  or  one  of  them  may 
be  ignorant  of  the  ultimate  illegal  purpose.  Under  all  the  above 
conditions,  the  contract  may  have  been  executed  on  both  sides, 
one  side  only  or  on  neither  side,  before  the  courts  are  called  upon 
to  pass  on  the  effect  of  the  illegality. 

The  general  broad  principle  is  well  recognized  that  a  contract 
tainted  by  illegality  is  void,  in  the  sense  that  it  is  unenforcible ; 
but  this  can  not  be  stated  as  a  rule  to  be  applied  under  all  cir- 
cumstances. 

It  is  believed  that  an  examination  of  the  authorities  will  bear 
out  the  following  rules;  for,  though  they  may  not  be  found 
strictly  and  consistently  applied,  in  all  instances,  the  principles 
upon  which  they  are  founded  are  sound,  and  are  commonly  ac- 
knowledged, and  have  received  repeated  judicial  sanction. 

Agreement  Wholly  Executed. — Rule. — "Where  an  agreement, 
though  unlawful,  has  been  executed  on  both  sides,  actual  rights 
are  recognized  as  having  been  conferred  by  it  to  the  same  extent 
as  if  it  had  been  lawful  in  its  inception,  and  these  will  not  be  in- 
quired into  or  disturbed  by  the  courts,  at  the  instance  of  either 
party  concerned.  The  courts  stand  neuter  between  the  parties, 
and  will  not  disturb  or  alleviate  a  condition  brought  about  by 
their  own  wrong-doing. 

Agreement  Performed  on  One  Side. — Hide. —  (a)  Between  par- 
ties in  pari  delicto  an  illegal  agreement,  executed  on  one  side,  will 
will  not  be  enforced  or  relieved  against 


606  AMERICAN   ELEMENTARY   LAW. 

Rule. — (b)  Agreements  otherwise  voidable:  Where  one  party 
to  an  illegal  agreement  was  induced  to  enter  into  it  by  fraud, 
undue  influence,  or  duress,  or  where  he  was  not  sui  juris  at  the 
time  of  entering  into  the  agreement,  in  short,  in  those  cases  in 
which,  if  the  agreement  had  not  been  illegal,  he  could  have  had  it 
avoided  upon  some  other  ground,  the  courts  will  grant  relief  to 
him,  in  spite  of  the  unlawfulness  of  the  agreement.  He  must,  of 
course,  return  anything  received  under  it. 

Rule. — (c)  Locus  P 'cenit entice :  Where  one  party  repents  and 
repudiates  the  illegal  agreement  before  the  unlawful  purpose  has 
been  in  anywise  put  into  execution,  the  courts  hold  that,  unless 
the  agreement  was  positively  criminal  or  immoral  in  itself,  he 
may  seek  the  aid  of  the  court  to  avoid  it. 

Rule. —  (d)  Protective  Statute:  Where  one  party  repents  and 
repudiates  the  illegal  agreement,  on  no  other  grounds  than  that  it 
was  made  illegal  by  a  statute,  the  courts  have  held  that,  if  the 
prohibition  was  imposed  for  the  protection  of  a  particular  class, 
to  guard  them  from  imposition,  the  court  will  not  hear  one  who 
contracted  with  a  protected  individual  in  the  manner  prohibited, 
when  he  seeks  to  plead  the  illegality  of  the  contract  to  defend 
against  enforcement,  but  will  enforce  the  agreement. 

In  still  another  class  of  cases,  the  question  as  to  whether  par- 
ties will  be  regarded  as  in  equal  fault  depends  upon  their  inten- 
tions in  entering  into  the  contract. 

When  the  immediate  object  of  the  agreement  is  unlawful,  that 
is,  where  the  agreement  can  not  be  performed  without  the  doing 
of  some  act  either  unlawful  by  statute  or  regarded  as  repugnant 
to  public  policy,  the  agreement  is  always  absolutely  void  and  un- 
enforcible.  This  rule  is  of  universal  and  consistent  application, 
and  will  be  enforced  regardless  of  the  intention  of  the  parties  in 
entering  into  the  agreement. 

Where  the  immediate  object  or  consideration  of  a  contract  is 
not  unlawful,  but  the  intention  of  one  or  both  parties  in  making 
it  is  unlawful,  the  contract  may  be  either  void,  that  is,  totally  un- 
enforcible.  or  merely  unenforcible  by  one  of  the  parties.  Three 
rules  may  be  laid  down  with  assurance : 

Rule. —  (e)  Unlawful  purpose,  participated  in  by  both  parties: 
If  the  ultimate  unlawful  purpose  itself  is,  at  the  date  of  enter- 


GENUINENESS   OF   ASSENT.  607 

ing  into  the  agreement,  participated  in  by  both  parties,  the  agree- 
ment is  absolutely  void,  and  will  not  be  enforced  at  the  instance 
of  either  party,  nor  can  property  be  recovered. 

Rule.-^(i)  One  party  ignorant  of  the  unlawful  purpose: 
Where  one  party  to  an  agreement  whose  ultimate  purpose  is  un- 
lawful not  only  did  not  share  the  illegal  intent,  but  was  ignorant 
that  such  an  intent  was  entertained  by  the  other  party,  his  stand- 
ing, as  to  the  contract,  is  not  affected  by  the  unrevealed  purpose ; 
and,  if  the  immediate  object  of  the  contract  be  lawful,  he  can 
enforce  it,  while  the  other  party  of  course  can  not. 

Rule. — (g)  Mere  knowledge  of  unlawful  purpose,  without  ac- 
tive participation:  (1)  Where  the  illegal  purpose  of  one  party  is 
the  commission  of  some  heinous  crime,  as  distinguished  from  an 
act  merely  malum  prohibitum,  or  not  of  great  magnitude,  then 
mere  knowledge  of  such  purpose  by  the  other  party,  without  any 
other  participation,  will  render  him  in  pari  delicto,  and  he  can 
neither  insist  upon  performance  nor  ask  relief.  (2)  Where  the 
unlawful  purpose  of  one  party  is  the  commission  of  some  venial 
offense,  or  something  merely  malum  prohibitum,  then  mere  knowl- 
edge of  such  purpose  will,  in  some  jurisdictions,  render  him  in 
pari  delicto;  in  others,  it  will  not  do  so  without  some  active  par- 
ticipation on  his  part  in  the  unlawful  purpose. 

Agreement  Growing  Out  of  Prior  Illegal  Agreement. — Rule. — 
(h)  Where  an  agreement  grows  immediately  out  of,  or  is  con- 
nected with,  a  prior  illegal  one,  the  illegality  of  such  prior  agree- 
ment will  enter  into  the  new  and  render  it  void. 

But  if  the  new  promise  is  founded  wholly  on  a  new  considera- 
tion, it  is  not  rendered  illegal. 

Rule. —  (i)  The  test  is:  Is  the  plaintiff  compelled  to  resort  to 
the  prior  agreement,  in  order  to  make  out  his  case?  If  so,  the 
new  agreement  is  also  illegal ;  if  not,  it  will  be  sustained. 

The  above  test  is  applied  to  the  following  cases : 

(1)  An  agreement  to  pay  money  owing  on  a  prior  illegal  agree- 
ment. 

(2)  An  agreement  of  one  upon  request  of  another  to  pay  such 
other's  debt,  which  arose  on  an  illegal  contract. 

(3)  Where  such  payment,  as  above,  was  not  requested,  but  was 
subsequently  ratified. 

Assignees  of   Illegal   Agreements. — Rule. — (j)  Nonnegotiable 


608  AMERICAN   ELEMENTARY   LAW. 

Paper :  The  assignee  of  a  non-negotiable  instrument  takes  it  sub- 
ject to  all  defenses,  growing  out  of  illegality  or  otherwise,  which 
would  have  been  good  against  the  original  party. 

Rule. —  (k)  Negotiable  Instruments:  The  assignee  of  a  nego- 
tiable instrument,  if  he  is  an  innocent  purchaser  for  value  before 
maturity,  takes  the  same  freed  from  all  defenses  based  upon  origi- 
nal illegality,  unless  the  instrument  is  illegal  by  reason  of  some 
positive  statute  or  is  obtained  by  fraud  in  esse  contractus. 

Agreements  Partially  Illegal. — Rule. — (1)  Entire  Contracts: 
Where  a  contract  is  entire,  and  its  various  stipulations  are  insep- 
arable, the  entire  contract  is  rendered  void  by  the  illegality  of  one 
of  these  stipulations. 

Rule. —  (m)  Severable  Contracts:  Where  the  stipulations  of  a 
contract  are  severable,  the  illegality  of  one  or  more  of  such  stipu- 
lations will  not  render  the  remaining  ones  void.  That  part  of 
the  contract  which  is  legal  will  be  enforced. 

Classification  of  Illegal  Agreements. 

Agreements  Contrary  to  Public  Morality. — Rule. — (1)  Illicit 
cohabitation,  past  or  future,  can  not  furnish  the  consideration  of 
a  valid  contract. 

Rule. — (2)  Agreements  between  husband  and  wife  for  a  sepa- 
ration, to  take  place  in  the  future,  are  illegal ;  such  an  agreement, 
to  take  effect  at  once,  is  legal. 

Agreements  Prejudicial  to  the  State  in  its  External  Relations. 
(1)  Agreements  entered  into  between  the  citizens,  or  subjects,  of 
different  States,  after  war  has  been  declared  between  those  States. 

(2)  Agreements  made  by  a  citizen,  with  the  object  of  conduct- 
ing hostilities  against  a  State  at  peace  with  that  of  such  citizen. 

Agreements  Prejudicial  to  the  State  in  its  Intern-al  Affairs. — 
Agreements  detrimental  to  public  service : 

(1)  Assignment  by  public  officers  of  unearned  fees. 

(2)  Agreements  to  pay  public  officers  more  than  lawful  fees. 

(3)  Agreements  involving  any  species  of  traffic  in  public  of- 
fices. 

(4)  Lobbying  contracts. 

(5)  Agreements  which  have  the  effect  of  placing  the  interest 
of  public  officers  in  conflict  with  their  duty. 

(6)  Agreements  tending  to  interfere  with  the  course  of  public 
justice. 


GENUINENESS   OF   ASSENT.  609 

(7)  Certain  agreements  affecting  the  public  duties  of  citizens, 
as  an  agreement  to  pay  one  for  his  vote,  etc. 

(8)  Agreements   affecting   private   duties   of   individuals   in 
which  the  public  has  an  interest,  as 

(a)  Contracts  involving  the  commission  of  an  injury  to  a  third 
person. 

(b)  Contracts  for  puffing  or  suppressing  competition  at  sales. 

(c)  Agreements  tending  to  destroy   the  family  relation,   as 
agreements  to  procure  divorce,  surrender  custody  of  children,  etc. 

(9)  Trusts  and  contracts  in  restraint  of  trade. 


CHAPTER  VI. 

CONTRACTS    (CONTD.) 
DIFFERENT  KINDS  OF  CONTRACTS. 

The  subject  matter  and  purposes  of  contracts  are  so  various,  and 
so  many  kinds  of  obligations  of  different  character  frequently 
enter  into  the  constitution  of  a  single  contract,  that  it  is  thought 
best,  at  this  time,  to  examine  these  matters  in  detail.  It  is  hoped 
that  a  clear  understanding,  at  this  point,  will  much  facilitate  the 
study  of  both  Interpretation  and  Discharge. 

Covenants  and  Conditions. 

As  every  agreement  can  be  reduced  to  offer  and  acceptance,  so 
it  is  believed  that  the  terms  of  every  contract  can  be  reduced  to 
covenants  and  conditions.  Different  classes  of  these  terms,  of 
course,  have  applied  to  them  different  names  in  particular 
branches  of  contract  law,  particularly  in  the  law  of  real  estate, 
which  has  a  nomenclature  of  its  own;  but  the  terms  themselves 
are  generic,  and  under  one  or  the  other  designation  falls  every 
executory  term  which  can  occur  in  a  contract. 

A  covenant  is  an  executory  promise  to  do,  or  forbear,  a  particu- 
lar thing. 

A  condition  is  a  term  of  a  contract  whereby  a  qualification,  or 
restriction,  is  annexed  to  a  covenant,  so  as  either  to  suspend  its 
operation  until  the  performance  of  some  specified  thing  or  the 
occurrence  of  some  specified  event,  or  to  destroy  its  effect  upon 
the  nonperformance  of  some  specified  thing,  or  the  occurrence  or 
nonoccurrence  of  some  specified  event. 

A  covenant  may  be  independent;  that  is,  the  obligation  of  the 
contract  may  demand  its  fulfillment  absolutely,  and  in  any  event. 
Such  is  usually  the  case  where,  in  a  contract  containing  mutual 
covenants,  each  the  consideration  of  the  other,  one  party  has  fully 
performed.  Here  the  outstanding  covenant  of  the  other  party  is 
usually  absolute. 


DIFFERENT   KINDS   OF   CONTRACTS.  611 

Covenants  may  be  mutual  and  independent,  where  the  parties 
have  expressly  agreed  that  each  is  to  perform  absolutely,  and  in 
any  event.     Such  covenants  are  rare. 

Covenants  may  be  mutual  and  dependent;  that  is,  each  fur- 
nishes the  consideration  of  the  other,  and  they  depend  upon  each 
other  in  such  a  way  as  to  render  them  concurrent  conditions. 
Such  is  the  case  in  most  contracts  for  the  sale  of  goods  for  cash. 

A  covenant  may  depend  upon  a  condition  either  (1)  concur- 
rent, as  above,  (2)  precedent,  or  (3)  subsequent. 

A  condition  precedent  is  such  an  one  as  must  happen,  or  be 
performed,  before  the  covenant  dependent  on  it  becomes  opera- 
tive. After  performance  of  the  condition  precedent  its  depend- 
ent covenant  becomes  absolute. 

A  condition  subsequent  is  such  an  one  as,  when  it  does  not  hap- 
pen, or  is  not  performed  as  agreed  upon,  defeats  the  covenant  de- 
pending on  it.     The  covenant  is  discharged. 

A  covenant  may  depend  upon  several  conditions,  or  several 
covenants  may  depend  on  one  condition  in  the  same  contract. 

Classification  of  Contracts. 

Contracts  may  be  classed,  according  to  the  way  in  which  assent 
is  expressed,  as  express  or  implied. 

According  to  the  apportionability,  or  non-apportionability  of 
their  mutual  stipulations,  they  are  severable  or  entire. 

Contracts  wherein  there  are  several  obligors  or  obligees  may  be 
classed,  according  to  their  operation  on  the  parties  to  them,  as 
several,  joint,  or  joint  and  several. 

"Written  contracts  may  be  classed,  in  respect  to  the  presence  or 
absence  of  certain  qualities  that  show  themselves  upon  their  as- 
signment, as  negotiable  or  non-negotiable. 

Express  and  Implied  Contracts. — As  we  have  frequently  had 
occasion  to  notice,  either  offer  or  acceptance  may  be  made  by  con- 
duct as  well  as  words,  so  both  covenants  and  conditions  may  be 
shown  either  expressly  or  by  implication,  and  we  may  have  either 
an  express  or  implied  contract. 

An  express  contract  is  one  the  terms  of  which  have  been  agreed 
upon  by  the  parties  and  expressed  in  words. 

An  implied  contract  is  one  the  agreement  to  the  terms  of  which 
is  expressed  by  one  or  both  parties  by  conduct  such  as  to  raise  a 
clear  implication  of  assent. 


612  AMERICAN   ELEMENTARY   LAW. 

Entire  and  Severable  Contracts. — A  contract  may  be  entire,  or 
severable.  An  entire  contract  is  one  which,  by  its  terms,  nature, 
or  purpose,  shows  an  intention  of  the  parties  that  "each  and  all 
of  its  parts,  material  provisions  and  the  consideration  are  common 
each  to  the  other  and  interdependent;"  that  is,  that  all  done,  or 
forborne,  or  promised  to  be  done,  or  forborne,  on  the  one  side, 
taken  together  forms  the  consideration  of  the  acts,  forbearances  or 
promises  on  the  other. 

A  severable  contract  is  one  which,  by  its  terms,  nature,  or  pur- 
poses, shows  an  intention  of  the  parties  to  make  certain  acts,  or 
forbearances,  on  the  one  side  apportionable  to  certain  of  the  acts, 
or  forbearances,  on  the  other,  so  that  out  of  the  whole  several 
smaller  contracts  may  be  carved  each  supported  by  consideration. 
The  intent  of  the  parties,  as  indicated,  usually  controls. 

Joint,  Several,  and  Joint  and  Several,  Contracts. — A  contract 
may  bind  by  its  application,  or  confer  rights  upon,  one  party 
only  on  each  side ;  or  it  may  impose  liability  or  confer  rights 
upon  several  parties  on  each  side. 

A  joint  contract  is  one  which  imposes  its  obligation,  in  its  en- 
tirety, on  two  or  more  persons,  or  confers  a  right  upon  two  or 
more  persons  together.  Upon  the  breach  of  a  joint  contract, 
the  remedy  must  be  enforced  by  or  against  all  the  joint  parties. 

A  several  contract  is  one  in  which  the  right  conferred,  or  the 
liability  imposed  may  be  enforced  by  the  promisee  against  any 
one  of  the  promisors  separately  each  being  subject  to  a  separate 
suit. 

A  joint  and  several  contract  is  one  which  may  be  enforced 
against  all  the  promisors  together  as  against  any  one  of  them  sepa- 
rately each  being  subject  to  a  separate  suit. 

Negotiable  and  Non-negotiable  Instruments. — The  term  nego- 
tiable instrument  is  one  applied  to  certain  written  promises  to 
pay  money,  the  right  of  action  on  which  is  capable  of  being  trans- 
ferred by  endorsement  and  delivery,  in  case  the  undertaking  is  to 
a  designated  person  or  his  order,  and  the  like;  or  by  delivery 
merely,  in  case  the  undertaking  is  to  A  or  bearer.  The  assignee, 
in  either  case,  has  the  right  to  sue  in  his  own  name  and,  if  he  has 
taken  the  instrument  before  maturity  and  for  a  valuable  consider- 
ation, takes  it  relieved  of  all  defenses  against  prior  holders  of 
which  he  had  no  notice  at  the  time  of  its  acquisition  except  those 


DIFFERENT   KINDS   OF   CONTRACTS.  613 

based  on  positive  statutes  or  which  deny  the  legal  existence  of 
the  contract.  This  rule  as  to  defenses  goes  even  to  the  extent  of 
infirmity  or  want  of  title ;  that  is  to  say,  a  bona  fide  holder  of  the 
kind  described  above  takes  a  good  title,  even  from  one  who  has 
found  or  stolen  the  instrument.  The  most  usual  forms  of  nego- 
tiable instruments  are  bills,  notes,  and  checks. 

A  bill  of  exchange  is  an  absolute,  unconditional  order  by  one 
person  on  another  for  the  payment  of  a  certain  sum  of  money  to 
a  third  person. 

A  negotiable  note  is  a  written  promise  by  one  person  to  pay 
absolutely,  and  at  all  events,  a  sum  certain  in  money  to  a  person 
named,  or  his  order,  or  to  bearer.  If  it  lacks  any  one  of  these 
elements  indicated,  it  loses  its  perfect  negotiable  character. 

A  check  is  an  order  upon  a  bank,  purporting  to  be  drawn  upon 
a  deposit  of  funds,  for  the  payment  absolutely,  and  at  all  events, 
of  a  sum  certain  in  money  to  a  person  named  therein,  or  his  order, 
or  to  bearer,  and  is  payable  instantly  upon  demand. 

To  be  negotiable  each  of  these  instruments  must  be  payable  at 
a  certain  time.  As  that  is  interpreted  by  the  Law  merchant,  it 
need  not  be  a  definite  time. 

Other  instruments  than  those  mentioned  have  been  admitted  to 
partial  negotiability,  as,  for  instance,  bills  of  lading,  bonds,  stocks, 
etc. 

The  distinction  between  negotiability  and  mere  assignability 
must  be  constantly  kept  in  mind. 

Operation  of  Contract. 

It  may  be  laid  clown,  as  the  general  principle,  that  the  obliga- 
tion of  contract,  since  it  is  voluntarily  assumed  by  the  contracting 
parties,  can  bind  only  those  parties  the  one  to  the  other,  and  can 
not  include  within  the  operation  of  its  bond  any  not  parties  to  the 
agreement. 

Three  questions  arise  in  this  connection,  viz. : 

1.  Can  a  third  person,  not  a  party  to  the  contract,  enjoy  and 
enforce  rights  under  the  contract  by  reason  of  the  fact  that  the 
contract  was  made  to  his  benefit?  Can  A  enter  into  a  contract 
with  B  whereby  B  is  to  do  or  forbear  something  in  favor  of  C,  so 
that  C  will  have  a  right  against  B,  under  the  contract,  for  the  act 
or  forbearance?     At  English  Law,  it  was  generally  said  that  such 


614  AMERICAN   ELEMENTARY  LAW. 

a  contract  gave  to  C  no  right  which  he  could  enforce.  In  Amer- 
ica, two  doctrines  have,  in  the  main,  received  sanction  in  the  vari- 
ous States : 

(1)  "The  Massachusetts  rule"  follows  the  English  rule,  that 
no  action  is  maintainable  by  one  for  whose  benefit  a  promise  is 
made. 

(2)  "The  New  York  rule."  A  third  person  (X),  for  whose 
benefit  a  promise  is  made  by  A,  upon  consideration  moving  from 
B  (the  promisee),  may  maintain  an  action  upon  the  promise,  pro- 
vided B  was,  at  the  time  the  promise  was  made,  under  an  existing 
obligation  to  X  which  he  is  seeking  to  discharge  by  giving  X"  the 
benefit  of  A's  promise.     (Anson,  280.) 

"Where  this  last  rule  is  followed,  it  is  usually  held  that  the 
promisee  may  release  the  promisor  from  the  promise  before  the 
third  party  has  accepted  same  and  acted  upon  it,  not  afterward. 

The  rule  announced  in  (2)  above  seems  to  be  the  rule  followed 
in  Texas.  Spann  v.  Cochran  &  Ewing,  63  Texas,  240,  is  a  case 
directly  in  point.  In  the  opinion,  the  court  says :  "It  is  believed, 
however,  that  such  an  agreement  between  a  debtor  and  a  third 
person,  made  upon  valuable  consideration,  gives  to  the  creditor  a 
cause  of  action  upon  which  he  may  sue  and  recover  from  the 
person  who  has  so  contracted  to  pay  him  a  debt  originally  due 
only  by  the  person  to  whom  the  promise  is  made. "  Such  a  prom- 
ise does  not  come  within  the  provision  of  the  Statute  of  Frauds 
relating  to  contracts  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another.  Suit  may  be  brought  on  such  a  promise  by  a 
third  person  for  whose  benefit  it  was  made  in  his  own  name. 

2.  Do  the  parties  to  the  contract  enjoy  rights  in  rem,  as  well  as 
rights  in  personam;  that  is,  does  a  contract  between  A  and  B  give 
to  each  not  only  rights  against  the  other,  but  against  the  public  as 
well  ?  It  is  held  that  it  does.  The  duty  to  respect  the  contractual 
tie  rests  upon  all  the  world ;  and.  in  this  indirect  way,  persons  not 
parties  to  the  contract  are  affected  by  it.  "A  man  who  induces 
one  of  two  parties  to  a  contract  to  break  it,  intending  thereby  to 
injure  the  other,  or  to  obtain  a  benefit  for  himself,  does  that  other 
an  actionable  wrong." 

3.  To  what  extent  may  the  original  parties  to  a  contract  assign 
their  rights  and  liabilities,  under  the  contract,  and  substitute  new 
parties  ? 


DIFFERENT   KINDS   OF   CONTRACTS.  615 

The  liability  of  a  contract  can  not  be  assigned,  except  by  the 
assent  of  the  third  party  and  the  original  parties,  given  in  such  a 
way  as  really  to  effect  a  new  contract,  which  is  substituted  for  the 
old.     Liability  can  not  be>  assigned. 

Eights  under  a  contract  may  be  assigned.  We  will  notice 
briefly  the  Common  Law  rule,  and  the  equitable  rule. 

At  Common  Law. — In  the  early  history  of  the  Common  Law  a 
chose  in  action  was  absolutely  unassignable ;  such  a  course  was  re- 
garded as  against  public  policy,  because  promotive  of  litigation. 
It  was,  after  some  struggle,  established  that  a  foreign  bill  of  ex- 
change might  be  assigned  and  an  action  brought  by  the  assignee 
on  the  bill;  and,  still  later,  the  exception  was  extended  to  inland 
bills,  and  gradually  to  all  negotiable  paper.  Later,  in  view  of 
the  jursidiction  of  the  equity  courts,  parties  were  permitted  to 
assign  debts  not  evidenced  by  negotiable  instruments;  but,  in 
such  cases,  suit  must  be  brought  on  them  in  the  name  of  the  as- 
signor for  the  use  of  the  assignee.  In  1873  an  Act  of  Parliament 
was  passed  in  modification  of  the  Common  Law,  giving  to  the 
assignee  of  any  debt  or  legal  chose  in  action  all  legal  rights  and 
remedies;  but "  (a)  the  assignee  takes  subject  to  equities;  (b)  the 
assignment  must  be  absolute;  (c)  must  be  in  writing,  signed  by 
the  assignor;  (d)  express  notice  in  writing  must  be  given  to  the 
party  to  be  charged,  and  title  dates  from  such  notice. " 

In  Equity:  Bona  fide  assignments  of  choses  in  action  for  a  val- 
uable consideration  were,  from  an  early  date,  enforced  in  equity. 
The  rule  was  based  upon  public  utility,  and  the  advantage  to  com- 
merce of  the  increased  volume  of  transferable  property. 

Methods  of  Assignment. — By  act  of  parties :  No  particular  form 
of  words  or  form  of  instrument  is  required  to  constitute  a  valid 
assignment.  Where  a  chose  in  action  is  evidenced  by  a  written 
instrument,  assignment  may  be  made  by  separate  writing,  or  by 
endorsement.  It  is  generally  true  that  a  valid  assignment  may 
be  made  by  parol,  whether  the  chose  of  action  be  evidenced  by 
writing  or  not ;  and  where  there  is  no  written  evidence  of  the  debt, 
such  an  assignment,  of  course,  need  not  be  accompanied  by  any 
delivery  actual  or  symbolical. 

Where  there  is  a  note,  bond,  or  other  written  obligation  evi- 
dencing the  debt,  there  must  be  a  delivery  of  the  instrument. 


616  AMERICAN   ELEMENTARY   LAW. 

The  necessity  for  such  delivery  is,  of  course,  obviated,  where  a 
separate  assignment  in  writing  is  drawn  up  and  delivered. 

By  operation  of  law:  (a)  Upon  the  transfer  of  interests  in 
lands: 

Covenants  affecting  lease-hold  interests:  It  was  the  rule  at 
Common  Law  that  assignability  was  an  incident  of  lease  contracts, 
and  that  all  leases,  except  those  at  will,  could  be  assigned,  unless 
some  restriction  was  found  in  the  terms  of  the  lease.  Under  this 
rule,  the  liability  for  rent  went  with  the  assignment. 

Covenants  that  run  with  the  land :  A  covenant  that  is  appur- 
tenant to  or  annexed  to  the  land,  runs  with  the  land,  and  a  trans- 
fer of  the  land  works  an  assignment  of  the  rights  and  liabilities 
of  the  covenant,  by  operation  of  law. 

Thus,  a  covenant  of  warranty  runs  with  the  land.  The  test  as 
to  whether  the  covenant  is  personal,  or  runs  with  the  land,  is  usu- 
a^y  this:  Does  the  covenant  extend  to  the  thing  in  esse  as  part 
of  the  conveyance?  Thus,  where  land  was  conveyed  to  a  railroad 
company,  and  said  company  covenanted  to  fence  same,  such  cove- 
nant was  held  to  be  personal,  and  not  such  as  would  pass  to  a  sub- 
sequent purchaser.  A  covenant  to  keep  in  repair  a  building  in 
esse  at  the  time  of  the  conveyance  would  have  been  such  an  one  as 
would  run  with  the  land. 

(b)  Assignment  by  theory  of  representation. 

(1)  Death :  Death  of  a  party  works  an  assignment  of  his  rights 
and  liabilities  of  a  personal  nature  to  his  representative,  his  exe- 
cutor .or  administrator.  Such  assignee  takes  only  in  the  repre- 
sentative capacity.  Such  contracts  as  depend  upon  the  skill  or 
personal  services  of  the  deceased,  such  as  contracts  of  employ- 
ment, do  not  survive,  and  do  not  pass  to  the  representative. 

(2)  The  same  rule  as  the  above  applies  in  cases  of  bankruptcy, 
and  upon  exactly  the  same  principles. 

Effect  of  Assignment. — By  the  assignment  of  a  chose  in  action, 
the  assignee  succeeds  to  all  the  rights  and  privileges  of  his  as- 
signor. Where  the  chose  assigned  is  a  nonnegotiable  instrument, 
the  assignee  takes,  subject  to  all  the  equities,  offset,  etc.,  existing 
between  the  original  parties. 

If  the  instrument  is  negotiable  the  indorsement  to  an  innocent 
purchaser,  for  value,  without  notice  before  maturity,  cuts  off  all 


DIFFERENT   KINDS   OF   CONTRACTS.  617 

defenses  except  those  given  by  some  positive  statute  or  which  dis- 
pute the  legal  existence  of  the  contract. 

Interpretation  of  Contracts. 

The  subject  of  interpretation  of  contracts  involves  two  things: 
(1)  The  rules  of  evidence  in  accordance  with  which  the  con- 
tract itself  is  to  be  established. 

.  (2)  The  rules  by  which  the  contract,  once  established,  is  to  be 
construed  and  the  true  meaning  and  scope  of  its  terms  arrived  at. 

Rules  of  Evidence. 

Parol  Contracts. — The  rules  governing  the  proof  of  parol  con- 
tracts are  the  general  rules  of  evidence  in  force  as  to  other  mat- 
ters, and  reference  is  made  to  works  on  the  Law  of  Evidence. 

Written  Contracts. — "When  it  is  sought  to  enforce  contracts 
which  are  wholly  or  in  "part  in  writing,  it  is  still  necessary  that 
some  matters  be  established  by  parol ;  as,  for  instance,  the  identity 
of  the  party  bound  by  the  contract  and  the  party  sued,  the  ex- 
istence of  other  facts  and  circumstances  which  change  the  legal 
effect  of  the  written  instrument — such  as  fraud  in  the  procure- 
ment, etc.  These  rules  may  be  classified  under  the  following 
heads : 

(1)  Evidence  as  to  the  existence  of  the  document. 

(2)  Evidence  that  the  document  is  a  contract. 

(3)  Evidence  as  to  the  terms  of  the  contract. 

Evidence  as  to  the  Existence  of  the  Document. — (a)  If  the 
written  contract  itself  can  not  be  produced,  the  claimant  must 
prove  by  parol  (1)  that  the  contract  was  in  existence  and  was 
genuine;  (2)  that  it  is  now  lost,  or  destroyed,  and  that  he  is  not 
legally  responsible  for  its  nonproduction ;  the  terms  of  the  con- 
tract may  then  be  proved  as  though  it  had  been  a  parol  contract. 

(b)  To  prove  an  instrument,  at  Common  Law,  it  is  necessary 
to  call  one  of  the  attesting  witnesses,  if  any,  except  where  the  doc- 
ument is  thirty  years  old  and  comes  from  the  proper  custody. 
If  there  were  no  attesting  witnesses  or  none  of  the  attesting  wit- 
nesses are  living,  then  the  proof  of  the  handwriting  of  the  party, 
or  of  the  attesting  witnesses  as  the  case  may  be,  must  be  made  by 
persons  acquainted  therewith.  Reference  is  here  made  to  the 
works  on  Evidence,  where  these  rules  are  more  fully  discussed. 


618  AMERICAN   ELEMENTARY   LAW. 

(c)  Where  the  writing  does  not  set  forth  the  whole  contract, 
parol  evidence  may  be  introduced  to  show  that  fact,  and  to  sup- 
plement, not  to  change,  the  writing.  So  parol  evidence  is  admis- 
sible to  show  the  connection  between  various  documents  which, 
taken  together,  set  forth  the  contract.  "Where  the  contract  comes 
under  the  Statute  of  Frauds,  it  seems  that  such  evidence  is  not 
admissible,  unless  the  documents,  in  some  way,  refer  to  one  an- 
other. 

Evidence  That  the  Document  is  a  Contract. — (a)  Parol  evi- 
dence may  be  introduced,  to  show  want  of  genuineness  of  assent 
in  any  of  its  forms,  as  frauds,  mistake,  etc. 

(b)  Parol  evidence  is  admissible,  to  show  illegality  of  object. 

(c)  Parol  evidence  is  admissible,  to  show  want,  or  total,  or  par- 
tial failure  of  consideration ;  or  that  consideration  existed,  though 
none  was  recited ;  or  that  the  real  consideration  was  different  from 
that  recited. 

Two  exceptions  to  this  last  rule  are  recognized:  (1)  "Where  the 
consideration  is  expressed  in  a  contractual  stipulation,  it  is  a  term 
of  the  contract  which  can  not  be  varied  by  parol.  A  deed  which 
recites  consideration  can  not  be  defeated  by  showing  no  considera- 
tion, or  by  showing  different  consideration.  Of  course,  in  both 
the  above  instances  fraud,  accident,  or  mistake  could  be  shown. 

(d)  Parol  evidence  is  admissible,  to  show  a  condition,  agreed 
upon  by  the  parties,  which  suspended  the  operation  of  the  con- 
tract, as  where  a  deed  has  been  delivered  in  escrow. 

Evidence  as  to  the  Terms  of  the  Contract. — It  is  the  fundamen- 
tal rule  that  the  instrument  is  the  best  evidence  of  its  terms ;  but 
we  find  certain  well  recognized  exceptions  to  this  rule : 

(a)  "Where  the  parties  have  not  put  all  the  terms  of  their 
agreement  in  writing,  such  supplementary  or  collateral  terms  as 
are  required  to  complete  the  contract,  as  actually  made,  may  be 
shown.  In  such  cases,  the  parol  evidence  can  not  be  allowed  to 
contradict  the  writing,  but  only  to  supplement  it,  where  a  distinct 
parol  contract  has  been  partially  reduced  to  writing. 

(b)  Parol  evidence  may  be  introduced  to  explain  latent  ambi- 
guities in  the  terms  of  the  contract.  The  ambiguity  may  be  as  to 
the  subject  matter,  identity,  or  capacity  of  the  parties  or  meaning 
of  some  word  used  in  a  local  or  technical  sense. 


DIFFERENT   KINDS   OF   CONTRACTS.  619 

(c)  Parol  evidence  can  be  offered  to  show  fraud  in  esse  con- 
tractus, or  mutual  mistake,  in  reducing  the  contract  to  writing. 

Construction. 

After  the  instrument  itself  has  been  proved,  as  the  basis  of 
rights  and  liabilities,  it  then  becomes  necessary  to  determine,  from 
the  instrument  itself,  just  what  those  rights  and  liabilities  are. 
This  is  the  purpose  of  Construction.  In  this  construction  the  ob- 
ject is  to  give  effect  to  the  intention  of  the  parties  as  expressed  in 
the  instrument;  that  is  to  say,  the  question  is  not :  What  may  the 
parties  have  meant  and  intended?  but,  What  is  the  meaning  of 
the  words  which  they  have  used  ?  No  unexpressed  intention  can 
be  considered. 

If  the  whole  instrument,  taken  together,  contains  no  ambigui- 
ties or  seeming  inconsistencies,  there  is  no  room  for  interpreta- 
tion ;  but  instruments  of  that  degree  of  perfection  are  so  rare,  and 
the  courts  are  so  often  called  upon  to  settle  questions  as  to  the  real 
intent  of  the  parties  expressed  in  written  evidences  of  contracts, 
that  a  large  mass  of  rules  of  construction  have,  from  time  to  time, 
been  developed,  which  are  announced,  with  considerable  positive- 
ness,  as  forming  an  integral  part  of  the  Law  of  Contracts,  and 
which  are  followed,  by  the  courts,  with  varying  degrees  of  con- 
sistency and  certainty,  as  each  case  may  seem  to  demand. 

Rules  Relating  to  Construction  of  Contracts  as  a  Whole. — 
(1)  The  intention  is  to  be  determined  by  a  reference  to  the  whole 
instrument,  rather  than  to  any  particular  phrase,  clause,  or  sen- 
tence. 

(2)  To  this  end,  the  instrument  must,  if  possible,  be  given  such 
a  construction  that  every  word  or  clause  shall  be  effective ;  that  is, 
a  construction  is  to  be  adopted  which  will  harmonize  the  various 
parts  of  the  instrument.  This  is,  however,  not  always  possible. 
"Where  there  is  a  repugnance  between  a  general  and  a  particular 
description  in  a  deed,  the  latter  will  control ;  although,  whenever 
it  is  possible,  the  real  intent  must  be  gathered  from  the  whole  de- 
scription, including  the  general  as  well  as  the  particular." 

(3)  Transactions  evidenced  by  several  writings:  Another  par- 
ticular application  of  the  general  principle  laid  down  is  found  in 
the  rule  that  ' '  two  deeds,  or  writings,  executed  at  the  same  time. 


620  AMERICAN   ELEMENTARY   LAW. 

between  the  same  parties,  and  in  reference  to  the  same  subject 
matter,  are  to  be  taken  as  parts  of  one  contract  and  forming  an 
entire  agreement."  The  same  rule  applies  to  separate  writings 
not  executed  at  the  same  time,  or  not  referring  to  the  same  trans- 
action, where  one  is  referred  to  by  the  other  in  such  a  manner  as 
to  make  it,  expressly  or  impliedly,  a  part  of  that  other.  If  such 
reference  is  made  for  a  particular  purpose  only,  the  connection 
will  be  recognized  for  that  purpose  only. 

(4)  That  construction  is  preferable  which  renders  the  contract 
reasonable  and  equitable,  rather  than  the  reverse. 

(5)  The  court,  where  it  is  necessary  to  arrive  at  the  intent  of 
the  parties  will  consider  the  circumstances  surrounding  them  at 
the  time  the  contract  was  made ;  but  this  is  done  merely  to  arrive 
at  the  meaning  of  the  words  actually  used  in  the  written  instru- 
ment, not  to  add  to  or  take  away  from  those  words. 

(6)  "Where  the  contract  is,  in  itself,  ambiguous,  if  the  parties 
have,  by  their  actions  under  it,  or  under  others  like  it,  where  there 
has  been  a  uniform  and  harmonious  course  of  dealing  between  the 
parties,  construed  the  instrument  in  a  particular  way,  effect  will 
be  given  to  this  construction.  Evidence  of  such  conduct,  how- 
ever, will  not  be  admitted  to  vary  the  terms  of  a  clear  and  plain 
contract. 

(7)  In  addition  to  the  terms  expressed  in  the  contract,  the  law 
will  read  into  it  certain  terms,  which  are  of  such  a  nature  that  it 
is  to  be  presumed  that  the  parties  had  them  in  mind  and  intended 
that  they  should  form  part  of  the  contract.  Thus,  it  is  usually 
held  that  the  parties  must  have  contracted  with  reference  to  the 
law  in  existence  at  the  time  the  contract  was  made,  so  that  its  ob- 
ligation becomes  an  implied  term  in  the  contract. 

Rules  Relating  More  Properly  to  a  Construction  of  Specific 
Words,  Phrases  or  Clauses. — (1)  The  words  of  a  contract  are  or- 
dinarily to  be  given  their  plain  and  generally  accepted  meaning ; 
not  so,  however,  when  such  a  meaning  would  render  the  contract 
senseless,  or  where  it  is  apparent  that  a  different  intent  existed. 

(2)  If  it  clearly  appears,  from  the  remainder  of  the  instru- 
ment, that  the  parties  used  the  words  in  an  arbitrary  and  unusual 
sense,  effect  will  be  given  to  that  sense. 

(3)  Technical  expression,  that  is,  those  which  have  a  peculiar 


DIFFERENT   KINDS  OP   CONTRACTS.  621 

meaning  in  some  art,  trade,  or  profession,  will  be  given  their 
technical  meaning. 

(4)  Words  which  have,  from  the  usage  of  the  locality,  or  from 
that  of  the  trade,  profession,  or  business  to  which  the  contract 
relates,  acquired  a  meaning  different  from  that  in  common  accep- 
tation will  be  given  the  meaning  sanctioned  by  the  usage  in  the 
minds  of  the  parties. 

(5)  Where  language  can  be  construed  in  two  senses,  in  one  of 
which  the  contract  would  be  legal,  in  the  other  illegal,  effect  will 
be  given  to  the  former  construction. 

(6)  Where  language  can  be  construed  in  two  senses,  in  one  of 
which  the  contract  would  be  valid,  in  the  other  invalid,  effect  is 
given  to  the  former. 

(7)  Where  language  can  be  construed  in  two  senses  in  one  of 
which  the  contract  would  be  senseless  or  frivolous,  though  valid, 
in  the  other  effectual  and  operative,  effect  is  given  to  the  latter 
construction. 

(8)  Restrictive  words  control  general  words  referring  to  the 
same  thing,  where  the  intent  can  not  be  gathered  from  the  whole 
instrument  and  the  two  expressions  are  hopelessly  repugnant. 

(9)  Where  the  real  intent  of  the  parties  can  be  gathered  from 
the  instrument,  obvious  clerical  and  verbal  mistakes  can  be  cor- 
rected, or  even  omitted  words  inserted,  so  as  to  effectuate  intent 
of  parties. 

(10)  Words  wholly  inconsistent  with  the  nature  of  the  con- 
tract, or  repugnant  to  the  expressed  intent  of  the  parties,  may  be 
rejected.    , 

(11)  Grammatical  inaccuracies  and  incorrect  spelling  are  im- 
material, nor  can  punctuation  control,  where  the  meaning  is  other- 
wise clear. 

(12)  In  contracts,  partly  written  and  partly  printed,  the  writ- 
ten portion  will  control  in  case  of  inconsistency. 

Discharge  of  Contracts. 

Discharge  of  a  contract  may  be  effected  in  any  one  of  five  ways : 

(1)  By  agreement. 

(2)  By  performance. 

(3)  By  impossibility  of  performance 

(4)  By  operation  of  law. 

(5)  By  breach. 


622  AMERICAN   ELEMENTARY   LAW. 

Discharge  by  Agreement. 

Since  the  obligation  of  contract  arose,  in  the  first  instance,  from 
agreement  of  the  parties  to  it,  so  it  may  be  dissolved  by  their 
agreement. 

This  agreement  may  take  the  form  of  either  (1)  Waiver, 
(2)  Substituted  Contract,  or  (3)  by  some  provision  for  discharge 
in  the  original  contract. 

Discharge  by  Waiver. — By  waiver,  in  this  connection,  is  meant 
mutual  release  from  the  contractual  bond,  or  voluntary  rescission 
of  the  contract,  in  which  the  consideration  for  the  promise  of  each 
party  is  the  promise  of  the  other. 

Where  the  contract  has  been  performed  on  one  side,  a  mere 
agreement  by  which  the  party  still  bound  is  to  be  released  is  not 
good,  and  will  not  be  binding  on  the  other  party.  Such  an  agree- 
ment must  be  supported  by  consideration  and  have  all  the  ele- 
ments of  an  original  valid  contract. 

At  English  Law,  the  negotiable  instrument  was  not  permitted 
to  be  waived,  as  other  contracts,  but  the  American  rule  is  differ- 
ent. Such  a  contract  may  be  waived  as  any  other,  but  the  instru- 
ment must  be  delivered  up. 

Substituted  Contract. — The  parties  to  a  contract  may  enter 
into  a  new  agreement  between  themselves  on  the  same  subject 
matter,  which  will  either  expressly  or  impliedly  discharge  the  ex- 
isting contract.  There  must,  in  such  cases,  be  a  valid  considera- 
tion to  support  the  mutual  promise. 

When  such  discharge  is  claimed  by  implication,  the  implication 
must  be  plain,  the  terms  of  the  new  contract  must  be  inconsistent 
with  those  of  the  former. 

The  discharge  may  be  my  novation ;  that  is,  by  the  agreed  sub- 
stitution of  a  new  party  in  the  place  of  one  of  the  original  ones, 
the  terms  of  the  new  contract  remaining  the  same.  To  constitute 
a  novation,  there  must  be  mutual  assent  of  the  three  parties  upon 
proper  consideration,  and  an  unqualified  discharge  of  the  person 
originally  bound.  Distinguish  such  an  agreement  from  one  to 
answer  for  the  debt  of  another. 

A  postponement  of  performance  for  the  convenience  of  one  of 
the  parties  does  not  amount  to  the  substitution  of  a  new  agree- 
ment which  can  discharge  the  contract. 


DIFFERENT  KINDS  OF   CONTRACTS.  623 

Discharge  According  to  Provisions  in  the  Contract. — The  con- 
tract itself  may  contain  provisions  for  its  discharge.  Such  pro- 
visions may  take  the  form  of  conditions  subsequent,  upon  the  oc- 
currence of  which  the  contract  is  to  be  discharged;  a  condition 
precedent,  upon  the  nonfulfillment  of  which  the  contract  is  to  be 
discharged,  or  the  reservation  of  the  right  by  one  or  both  parties 
to  terminate  the  contract  upon  notice  given,  as  in  contracts  of  em- 
ployment, and  other  continuing  agreements. 

Discharge  by  Performance. 

A  complete  performance  of  the  mutual  stipulations  and  prom- 
ises of  a  contract  discharges  the  contract. 

The  obligation  of  one  or  the  other  party  to  the  contract  is  fre- 
quently a  money  liability,  in  which  performance  on  his  part  will 
take  the  form  of  payment.  There  are  several  rules  to  be  noted  as 
to  payment : 

(1)  A  less  sum  can  never  pay  a  greater  so  as  to  discharge  the 
party  so  paying.  There  must,  in  such  case,  be  additional  con- 
sideration. 

(2)  Payment  by  giving  a  negotiable  instrument  may  discharge 
the  party  so  paying,  absolutely  or  only  conditionally.  If  it  is 
agreed  between  the  parties  that  the  instrument  is  accepted  in  ab- 
solute payment,  then  the  party  giving  it  is  discharged  from  the 
former  indebtedness.  In  the  absence  of  such  agreement,  the  pay- 
ment and  discharge  are  only  conditional,  depending  upon  whether 
or  not  the  instrument  is  honored  at  maturity. 

Tender. — An  attempted  performance,  frustrated  by  the  other 
party,  is  called  a  tender.  Tender  may  or  may  not  discharge  the 
party  tendering,  according  to  the  circumstances. 

Where  one  party  is  bound  by  the  contract  to  deliver  goods,  if 
he  tenders  the  goods  at  the  proper  time  and  place  to  the  other 
party,  or  to  one  authorized  by  him  to  receive  them,  he  is  dis- 
charged by  this  from  the  contract,  if  it  is  otherwise  fully  executed 
on  his  side  and  is  unexecuted  on  the  other  side,  and  refusal  by 
the  other  party  to  accept  is  a  breach  of  the  contract.  If  the  other 
party  has  executed,  the  tender  will  have  the  same  effect  only  as 
tender  of  money  in  payment  of  a  debt. 

Where  one  party  is  bound  by  the  contract  to  pay  money,  tender 
on  his  part  and  refusal  on  the  part  of  the  other  does  not  discharge 


624  AMERICAN   ELEMENTARY   LAW. 

the  debt;  but  such  tender,  if  properly  made,  does  discharge  him 
from  any  further  liability  for  interest,  costs  of  suits,  etc. 

Tender  of  money  must  be  made  on  the  day  on  which  the  debt  is 
due,  not  before  or  after.     It  must  be  absolute  and  unconditional. 

Tender  must  be  kept  up  after  having  been  made;  that  is,  the 
party  must  remain  ready  and  willing  to  pay. 

"A  tender  required  by  a  contract  will  be  waived  by  a  party  in 
whose  favor  it  was  required,  by  acts  or  words  on  his  part  showing 
that  it  would  not  be  received. " 

It  has  been  held  that,  to  constitute  a  good  tender  the  precise 
sum  due  must  be  offered. 

Discharge  by  Impossibility  of  Performance. 

There  may  be  an  impossibility,  legal  or  physical,  upon  the  face 
of  the  contract,  or  there  may  be  an  impossibility  due  to  the  non- 
existence, not  known  at  the  time  to  either  party,  of  the  subject 
matter  of  the  contract.  The  first  case  belongs  properly  to  the 
subject  of  Consideration;  the  second  to  that  of  Mutual  Mistake. 
In  both  cases  the  contract  is  void. 

Impossibility  of  performance,  however,  may  arise  subsequently 
to  the  formation  of  the  contract,  and,  in  some  such  cases,  the  con- 
tract will  be  discharged.  The  general  rule  is  that  such  impossi- 
bility does  not  discharge  the  contract. 

Exceptions : 

(1)  Legal  impossibility,  arising  from  a  change  in  the  law  of  the 
land. 

(2)  Where  the  continued  existence  of  a  particular  thing  is  nec- 
essary to  performance,  its  destruction,  from  no  fault  of  either 
party,  operates  to  discharge  the  contract. 

(3)  Contracts  for  personal  service  are  discharged  by  the  death 
of  the  promisor. 

Discharge  by  Operation  of  Law. 

Under  certain  circumstances,  a  contract  will  be  discharged  by 
the  operation  of  rules  of  law. 

(1)  Alteration  of  a  written  instrument  or  agreement:  (a)  The 
alteration  must  be  made  in  a  material  part,  (b)  It  must  be  made 
by  one  of  the  parties,  or  by  one  acting  for  him,  without  the  con- 
sent of  the  other  party. 

(2)  Bankruptcy;  Bankruptcy  releases  the  debtor  from  contrac- 
tual liabilities  provable  under  the  bankruptcy. 


DIFFERENT   KINDS   OF    CONTRACTS.  625 

Discharge  by  Breach. 

Breach  of  the  obligation  of  the  contract  always  confers  a  right 
of  action  upon  the  other  party.  Sometimes  it  also  discharges  the 
other  party  from  further  performance.  Breach  may  take  the 
form  of: 

(1)  Renunciation  by  one  of  the  parties,  while  the  contract  is 
still  executory,  if  unequivocal  and  absolute,  constitutes  a  breach 
of  the  contract,  and  at  once  discharges  the  other  party,  if  he 
choses.  It  is  said  that  each  party  to  a  contract  has  not  only  the 
right  to  performance  when  due,  but  also  ' '  to  maintenance  of  the 
contractual  relation  up  to  that  time." 

(2)  Impossibility  of  performance,  created  by  one  party  before 
performance  is  due,  discharges  the  other  party  immediately  from 
the  contract,  and  gives  him  an  immediate  right  of  action ;  as  where 
A  promises  to  marry  B  upon  a  certain  date,  and,  before  that  date, 
marries  C,  the  contract  is  discharged  by  the  impossibility  created, 
and  B  has  an  immediate  cause  of  action. 

(3)  In  continuous  contracts  the  same  is  true  of  renunciation  by 
one  party,  or  impossibility  created  by  him,  which  is  merely  a  spe- 
cies of  renunciation,  in  the  course  of  performance;  that  is,  at  any 
time  before  performance  has  become  complete. 

(4)  Breach  of  contract  by  one  party,  at  the  time  of  perform- 
ance due,  may  or  may  not  discharge  the  other  party : 

^a)  A  breach  in  any  vital  part  of  the  contract,  that  is,  any  stip- 
ulation which  goes  to  the  root  of  the  contract  so  that  its  breach  will 
destroy  the  purpose  of  the  contract — discharges  the  other  party 
from  the  contract. 

(b)  Breach  of  some  trivial  stipulation,  while  it  gives  ground 
for  an  action  for  damages,  will  not  discharge  the  other  party  from 
performance. 

(c)  Breach  may  be  waived  by  word  or  act  and  performance 
continued,  in  which  case  the  promisee  will  have  his  action  for 
damages,  but  will  not  be  discharged. 

(d)  "Whether  or  not  complete  discharge  follows  breach  de 
pends,  very  often,  upon  whether  or  not  the  contract  is  entire  or 
severable.  If  it  is  entire,  breach  of  a  single  material  stipulation 
will  discharge  the  promisee.  If  it  is  severable,  such  is  not  the 
case,  and  the  promisee,  while  entitled  to  damages  apportioned  to 
the  breach,  is  not  discharged  from  further  performance. 

40 


626  AMERICAN   ELEMENTARY   LAW. 

(e)  Whether  or  not  discharge  results  from  breach  depends, 
also,  upon  the  character  of  the  covenants  in  the  contract.  Cove- 
nants may  be: 

Mutual  and  independent ;  that  is,  two  absolute  executory  prom- 
ises to  do,  or  to  forbear.  In  this  case,  breach  by  one  party  of 
his  covenant  does  not  discharge  the  other  from  performance  of  his. 

Mutual  and  dependent;  that  is,  two  executory  promises  to  do, 
or  forbear,  each  dependent  on  the  other.  The  two  covenants  then 
form  concurrent  conditions.  Breach  by  either  party  will  dis- 
charge the  other. 

Not  mutual,  but  one  dependent  upon  the  other ;  that  is,  a  cove- 
nant on  the  one  hand,  dependent  upon  the  prior  performance  of 
the  other,  called  a  condition. 

The  condition  may  be  precedent,  or  subsequent;  and  the  non- 
performance of  the  condition  precedent  or  the  occurrence  of  the 
condition  subsequent  discharges  the  covenant  depending  on  it. 
There  may  be  covenants  of  all  these  kinds  in  one  contract,  and  it 
is  for  this  reason  that  the  construction  of  stipulations,  with  refer- 
ence to  their  breach  and  discharge,  is  often  difficult. 

A  condition  does  not  maintain  an  action  for  damages,  it  simply 
discharges  the  contract. 

The  construction  of  the  various  mutual  stipulations  of  a  con- 
tract to  determine  which  are  covenants  and  which  conditions,  and 
the  relation  of  these  to  each  other,  is  for  the  court.  The  intention 
of  the  parties  will  control,  where  it  can  be  arrived  at. 


INDEX. 


A. 

PAGE. 

Abnormal  Persona    6, 150 

Acceptance    583 

Accessories    522 

Accidents   164, 165 

Definition   8, 164 

Actionable    8,164 

Inevitable 8, 164 

Direct  and  Proximate  Cause  as  Applied  in  Cases  of 165 

Accomplices 522 

Acquisition  of  Ownership,  Methods  of 356,  357 

Actual  Fraud    257 

Adjective  Law   132 

Administration  upon  Estates 276,  277,  415 

Admissions    . . ., 496-498 

Adoption  of  Children 289-291 

Method  of 290 

Effect  of  290 

Agency  (See  Principal  and  Agent). 

Of  the  Wife  for  Husband 168 

May  be  Proved  by  Parol 486 

Agent  (See  Principal  and  Agent). 

Agreement  (See  Right  to  Contract,  and  Contract,  Essentials  of)  .197-203 

Definition  of  10,  582 

As  Affecting  Legal  Rights  and  Duties 10-13 

Elements  of  Enforceable   10 

Basis  of  Liability  for  Conduct  of  Another 15 

To  be  Responsible  for  Conduct  of  Another 171 

As  Creating,  Modifying,  or  Destroying  Legal  Rights 227-241 

Resulting  in  Contract  227-231 

Not  Resulting  in  Contract 231-239 

Lacking  Competent  Parties  232-234 

Lacking  Consideration    234-236 

Defective  in  Form 236-238 

Lacking  Legality  of  Purpose 238 


628  INDEX. 

PAGE. 

Basis  of  License   267-269 

Lacking  Consideration    267 

Lacking  Form    268 

With  Unlawful  Purpose   268,  269 

As  to  Use  of  Force  Upon  the  Body 268,  269 

Discharge  of  Contract  by 622,  623 

Ultra  Vires   .' 331 

Air,  Nuisances  as  to 560 

Aliens,  Contractual  Capacity   585 

Alienation  of  Affections  of  a  Spouse 578 

Allegata  and  Probata 498 

Allegiance    148 

Amendments  to  Pleadings  473 

Appeal  of  Case 509 

Appellate  Courts,  Trial  in  509,510 

Appointing  Power  of  the  President 57 

Arraignment   528 

Articles  of  Confederation    29,  86,  87 

Artifice  in  the  Law  of  Fraud 253 

Assault    562 

Assessment  of  Shareholders   344 

Assignment  of  Rights  12 

Under  Contract   614-616 

(See  Operation  of  Contracts.) 

Assumption  of  Risk  by  Servant  300 

Attorney  General,  State   77 

Attorneys  at  Law   450 

Authority  of  Agent,  When  Must  be  Written 307 


B. 

Bailments    407-408 

Barter   407 

Battery   562 

Best  Evidence  Rule 482 

Bills,  Veto  by  President  51 

Bills  and  Notes,  Consideration  for  236 

Bills  of  Exchange  613 

Birth,  as  Effecting  Citizenship  147 

Body,  The,  Application  of  Force  to  as  Affected  by  Motive 159-161 

Security  of    189-191 

Protection  by  Criminal  Law   190 

Protection  by  Tort  Law 190 

License  to  Use  Force  Upon  268,  269 

To   Reasonable  Extent    268 


INDEX.  629 

PAGE. 

To  Unreasonable  Extent 269 

Injury  to   .* .- 564 

Torts  Injurious  to   562,563 

Assault  and  Battery 562 

False  Imprisonment  563 

Malicious  Prosecution   563 

Exhibition  In  Evidence  488 

Breach  of  Contract,  Discharge  by  625,  626 

Buffington  v.  Day 115-121 

Burden  of  Proof 475,  476 

Business,  Right  to  Carry  on 204 

Limitations  upon , 204,  205 


c. 

Cabinet  of  the  President 55,  56 

Capital  Stock   340-342 

Care,  Standard  of  243,244,547 

Case,  Jurisdiction  Over,  How  Acquired  461-468 

Cases   Involving  a  Federal  Question,  Jurisdiction   of  Supreme 

Court  Over   68,69 

Causation,  Legal   15 

Cause,  Direct  15 

Remote 15 

Remote  and  Proximate   174,175,544,553 

In  Negligence  551 

Cause  of  Action,  None  in  Behalf  of  Wrong  Doer 12 

When  Arises  in  Behalf  of  Either  Party 12 

Certitude 16 

Chancery  Courts  82,  456-459 

Character  665 

Charge  of  Court 507 

In  Criminal  Cases 528 

Charges  by  Common  Carriers 425,  426 

Charter  of  Corporations  (See  Corporations)    334-340 

Chattels 392 

Check 613 

Child  (See  Parent  and  Child). 

Circuit  Courts,  Federal,  Jurisdiction  of  64-66 

Circuit  Court  of  Appeals,  Federal,  Jurisdiction  of 66 

Circumstantial  Evidence  494 

Sufficiency  of   494 

Citation     465-468 

Requisites  of    465 

Service    465 


G30  INDEX. 

PAGE. 

By  Publication  • 465 

Personal    465 

Extraterritorial    465 

On  a  Citizen  466 

Cities  43-45 

Governmental  and  Business  Functions  of 43 

Suits  By  and  Against  43 

Liabilities  of    43, 183, 184 

Creation  of   44 

Governments  of  44,  45 

Torts  by 540 

Citizens    146 

Corporations  as  350 

Jurisdiction   Over    466-468 

Extraterritorial  Service  Upon   466 

Of  the  Different  States,  Rights  in  Other  States 97 

Citizenship  of  Married  Woman 283 

Civil  Law    134 

Sanctions  in   438,439,442-446 

Civil  Rights   209-211 

Equal  Protection  of  the  Law 209 

Due  Process  of  Law 210 

Cloud  Upon  Title  574 

Colonies,  Original   29-31,  71,  73 

Political  Institutions  In  29 

Charters  of  as  Written  Constitutions 29 

Declaration  of  Independence  by 29 

Adoption  of  State  Constitutions  by 29 

Formation  of  Confederation  by  •      30 

Formation  of  United  States  Government  by ' 30 

Common  Carriers   419-434 

Definition 419 

Carrier  of  Passenger  as 419 

Route,  Right  to  Designate  420 

Line  of  Business,  Right  to  Designate 420 

Duties  and  Liabilities 420 

Efficient   Service    420,421 

As  to  Premises  421 

As  to  Equipment 421 

As  to  Servants 421 

Prompt  Service   421 

Safe  Service   422 

Care  of  Passengers  244,  422 

Liability  as  to  Freight 423 

Insurer    423 

Exceptions 423 


INDEX.  631 

PAGE. 

Discriminations  by  423,  424 

Right  to  Refuse  Dangerous  Passengers  or  Freight. ...         425 

Charges  by 425 

Courtesy   426 

Right  to  Change  Legal  Duties  by  Contract 426 

Control  by  Federal  and  State  Governments 427 

Interstate  Commerce   427,  428 

State  Commerce 427,  428 

Congressional  Action  Concerning   428 

State  Action  Concerning 428 

Agreements  to  Carry  Beyond  Own  Line 429,  430 

Connecting  Carriers  429 

Common  Law,  Form  of  Action  240,  241 

Effect  on  Doctrine  of  Quasi  Contracts 240 

Common  Law   128, 133 

Definition   128 

Extent 128 

Creation    128 

As  to  Fraud 247,  248 

Rules  as  to  Knowledge  of  Falsity 247 

Effects  of  Marriage  Under 167 

Divorce  Under  285 

Common  Law  Courts  82,  451-456 

Historical  Development 452-454 

Magna  Charta  as  Affecting  453 

Nisi  Prius    454 

Forms  of  Action  in 454-456 

Common  Law  Crimes 512 

None  Under  the  Federal  Law 512 

Common  Law  Marriage >....        279 

Common  Source  of  Title 402 

Communications,  Privileged    207,  208 

Absolute   206 

Conditional    207 

Complaints 527 

Comptroller,  State 77 

Concealment,  as  Fraud   254,  572 

Conditions    610,  611 

Conduct    7, 154-156, 166-173 

Definition 7 

Affirmative '..  -7, 154, 155, 156 

Negative  7, 154, 155, 156 

Laws'  Regulation  of    154, 155 

When  Unlawful   155, 156,  537 

Legal  Consequences  of 174, 175,  544 

Intended  544 


632  INDEX. 

PAGE. 

Natural  and  Probable 544 

To  Whose  the  Law  Looks  in  Awarding  Benefits  and  Affix- 
ing Liability 166-173 

Primary  Range  of  Right  and  Liability 13, 166,  542 

Secondary  Range  of  Right  and  Liability 13-15, 166-173 

Legal   Identity   14,167 

Substitution     14, 15, 168-170 

Co-operation    14, 15, 170 

Express  Agreement 15,171 

Non-assignability  of  Duty   15, 171-173 

Ownership  Not  Itself  Basis  of  Liability 173 

Congress  of  the  United  States 49-53 

Two  Houses 49 

Senate   49-51 

House  of  Representatives    50, 51 

Veto  Power  of  President 49 

Express  Powers  of  Congress  32,  51-53 

Implied  Powers  of  Congress 99-109 

Confederation,  The  30,  86-88 

Nature  of  87 

Confederations   26 

Confession  and  Avoidance,  Pleas  in 471 

Confessions    496-498 

Connecting  Carriers   429,  430 

Agreements  to  Carry  Beyond  Own  Line 429 

Conquest  as  Method  of  Acquiring  Property 358 

Conscience,  Freedom  of 206 

Contradictory  Evidence  494 

Consideration  of  Contract  ( See  Contracts ) 588-591 

Agreements  Lacking 234 

Seals  as  Importing  235 

In  Negotiable  Instruments 236 

Of  Written  Contract  May  be  Proved  by  Parol 486 

Contract  Law    135 

Mental  Condition  in 161, 162 

Contracts    11, 199,  203,  227-231,  582-626 

Essentials  of 11, 197-203 

Fully  Performed,  Legal  Effect  of  11 

Partially  Performed,  Legal  Effect  of 11 

Defective  Parties  to  11 

Defect  in  Form   11 

Parties    199 

Purpose    200,  201 

Effect  of  Illegality  of 200,  201 

When  Participated  in  by  Both  Parties 200 

Known  to  Both  Parties 200 


INDEX.  633 

PAGE. 

Known  But  Not  Acquiesced  In 200 

Forbidden  by  Statute 200,  201 

Consideration    201,  202,  588-591 

Essential  to  Unexcuted  Promise   201 

Distinguished  from  Motive -  . . . .        201 

Seal  as  Importing 202 

Under  the  Law  Merchant 202 

Elements  of 227 

Executory    228 

Executed    228 

Vested  Rights  Under  229 

Express  229 

Implied  in  Fact 230 

Implied  in  Law  231 

Definition  of  582 

Essentials  of 583-609 

Offer  and  Acceptance  . '. 583,  584 

Form  of   583 

Intent  to  Create  Legal  Relations 583 

Must  be  Definite   584 

Offer  Must  be  Communicated   584 

Effect  of  Acceptance  on  Offer 584 

Acceptance,  How  Given 584 

Acceptance  Must  be  in  Toto  and  Absolute 584 

Parties  to 584-588 

Aliens    : 585 

Infants    585 

Lunatics,  Insane,  and  Drunkards 586 

Married  Women 587 

Corporations    587,  588 

Consideration    588-591 

Necessity  for 588 

What  is 589 

Adequacy    l 590 

Must  be  Legal 590 

Executed  or  Executory  But  Not  Past 590 

In  Negotiable  Instruments  591 

Form    591-595 

Under  Seal    591 

Simple  Contract 591 

Required  to  be  in  Writing 591-595 

For  Sale  of  Lands   592 

By  Executor  or  Administrator  593 

To  Answer  for  Debt  of  Another 593 

Not  to  be  Performed  in  a  Year  594 

Sales  of  Goods,  Wares  and  Merchandise 694 


0^4  index. 

PAGE. 

What  is  Written  Contract  595 

Effect  of  Failure  to  Comply  with  Statutes 595 

Assent,  Genuineness  of  596-609 

Different  Kinds    610-613 

Covenants  and  Conditions  610 

Classification  of  Contracts  611-613 

Express  and  Implied 611 

Entire  and  Severable  612 

Joint,  Several,  and  Joint  and  Several  612 

Negotiable  and  Non-negotiable  612 

Operation  of   613-617 

As  Between  Parties  613 

Rights  of  Third  Parties  Under 613-615 

Rights  in  Rem  Under  614 

Assignment  of  Rights  Under 614-617 

At  Common  Law  615 

In  Equity 615 

Methods  of 615 

By  Act  of  Parties 616 

By  Operation  of  Law 616 

By  Death   616 

Effect  of 616 

Interpretation  of  617-621 

Rules  of  Evidence 617-619 

Parol  Contract  617 

Written  Contract 617 

Existence  of  the  Document  617 

Parol  Evidence  as  Affecting 618 

As  to  Terms  of  Contract 618 

As  to  Construction   619-621 

Rules  Governing   619 

Of  Words  and  Phrases 620 

Discharge  of  621-626 

By  Agreement 622 

By  Waiver  622 

By  Substituted  Contract    622 

By  Terms  of  Original  Agreement 623 

By  Performance    623 

By  Tender  623 

By  Impossibility  of  Performance 624 

By  Operation  of  Law  624 

By  Breach   625 

Contract,  Capacity  Essential  to  Forming 161, 162 

Contract,  Infancy  as  Affecting  179 

Contract  by  Insane  Person  151 


INDEX.  635 

PAGE. 

Contract,  Married  Woman's  Powers  to 179-181 

Contract,  Charter  of  a  Corporation  as  (See  Corporations) 336-339 

Contract,  Remedy  for  Breach  as  Affected  by  Locality 224 

Contracts  Transferring  Title 361 

Contracts  Against  Liability  for  Negligence  549,  550 

Contracts,  Breaches  of,  Contrasted  with  Torts 555 

Contracts,  Inducing  Breach  of  578 

Contracts,  Changing  Legal  Duties  of  Common  Carriers 426,427 

Constitutions  as  Written  Law   129-131 

Construction  of  by  the  Courts  34-38 

Constitutions ." 4 

Creative  Provisions   4 

Perpetuative  Provisions 4 

Functional  Provisions 4,  5 

Restrictive  Provisions 4,  5 

Legislative  Department 5 

Judicial  Department 5 

Executive  Department  5 

Constitution  of  the  United  States  30-40 

Preparation  and  Adoption   ." 30 

Purpose  of 31 

Supremacy  of  31 

General  Nature  of 32 

Convention  by  Which  Drafted 89 

Ratification  of 90 

Organization  of  United  States  Government  Under 90 

Effect  of  on  Non-ratifying  States 90 

Amendments  to   91 

Reserve  Powers  of  the  States  Under 91 

Separates  the  Powers  of  the  State  and  Federal  Govern- 
ments    5, 91 

History  of 130 

Construction  of   5 

Provisions  Conferring  Express  Powers  Upon  Congress. . . .  51-53 
Construction  of  the  Clause  Granting  All  Necessary  and 

Proper  Powers   .  .* 106-109 

Provisions  Relating  to  Judicial  Power  60-62 

Express  Limitations  Upon  the  Power  of  the  United  States 

Government 70 

Guarantees  to  the  Several  States  in 83,  84 

Limitations  on  Powers  of  the  States  in  84 

Guarantees  as  to  Records  in  Judicial  Proceedings 96 

To  the  Citizens  of  Each  State  as  to  Rights  in  Other  States  97 


636  INDEX. 

PAGE. 

As  to  Extradition  Between  the  States 97 

Forbidding  Alliances  or  Treaties  Among  the  Several  States  97 

Effect  of  on  the  States 71-73,100,117-121 

Construed  in  McCulloch  v.  Md 101-115 

Fifth  and  Fourteenth  Amendments 211,  209 

Rules  of  Construction  of 5, 100, 101 

Powers  of  Federal  Government  Enumerated  in 101 

Construction  of  Interstate  Commerce  Clause   99-101 

Constitution  of  a  State,  Nature  of 131 

Constitutional  Guaranties  in  Criminal  Matters 629-532 

In  Constitution  of  the  United  States 529 

In   State  Constitutions   530-532 

Constitutional  Guarantee,  Freedom  of  Speech   205,206 

Constitutional  Convention   88-90 

Constitutional  Law  129-131 

Construction  of  Contracts   619-621 

As  a  Whole  619 

Words  and  Phrases   620 

Constructive  Fraud  257 

Contribution    14 

Among  Joint  Tort  Feasors 545,  546 

Among  Parties  to  Fraud  262,  263 

Contributory  Negligence  552,  553 

Definition  552 

As  a  Defense 550-552 

Sudden  Peril  553 

Covenants 626 

Convention  Which  Drafted  the  Constitution  of  the  United  States    88-90 

Conversion,  Transfer  of  Title  by  Suit  for 368 

Conveyances    399,  400 

Of  Land,  Form  of 399 

Registration  of 399 

Innocent  Purchasers    400 

Conveyance  of  Property 204 

Conveyances  of  Land  361 

By  Agent  307 

Conveyance  to  Defraud  Creditors 239 

Corporeal  Things  7 

Co-operation  as  Involved  In  Joint  Actors  312 

As  Between  Employer  and  Independent  Contractor 313 

As  Involved  In  Partnership  313 

Copyrights   410 

Corporate  Funds   345,  346 

Corporations    317-350 

General  Definition 317 


INDEX.  637 

PAGE. 

Public,  Definition    317 

Private,  Definitions 317,  318 

Is  Legal  Entity  317-319 

As  Agency  of  Incorporators 319 

As  Combination  of  Individuals   319-321 

Essentials  of 321 

Powers  of 321 

Essentials,  General  Discussion  322-326 

Merger  of  Members  322 

Capacity  for  Continued  Existence 322,323 

Name  323 

Power  to  Sue  and  be  Sued 323 

To  Have  a  Seal 323 

To  Make  By-Laws 323 

Franchises   324 

Immunities 324 

Shares  of  Stock 325 

Non-liability  of  Members  325 

Public  Corporations    326 

Quasi  Public  Corporations 326 

Private  Corporations    327-350 

Created  by  the  States  327 

Created  by  the  Federal  Government 327 

Stock  Corporations  327-350 

How  Formed 327,  328 

At  Common  Law  328 

By  Statute  329 

Powers  of 330,  331 

Involved  in  Corporate  Existence 330 

Expressed  in  Charter   330,331 

Implied  from  Charter 330,331 

Ultra  Vires   331-333 

As  to  Agreements  331 

As  to  Torts  332,  333 

Charter  333,  334 

Special  Act  as 334 

Under  Enabling  Act 334-336 

As  a  Contract 336-339 

As  Between  the  State  and  the  Body  of  Incorpo- 
rators     336-338 

As  Between  Individual  Incorporator  and  Body  of 

Incorporators    338 

Legal  Entity  Not  a  Party  to 338,  339 

As  the  Law  of  Being  to  the  Corporate  Entity 339 

Capital   Stock   340-342 


G38  INDEX. 

PAOK. 

What  is   340 

Shares  of  340 

How  Acquired 340 

Subscriptions  for 341 

Membership  342-344 

How  Acquired   343 

Rights  of   343 

Liabilities  of 344 

Internal  Government  344 

Corporate  Funds  345 

Trust  Theory   345 

Full  Ownership  Theory 345 

Corporations  De  Facto 347,  348 

Essentials  to  347,  348 

Rights  and  Liabilities  of 348 

Against  and  to  Private  Persons  348 

As  to  State 348 

Foreign  and  Domestic 348-350 

Definitions  348,  349 

As  Citizens  349 

Comity  as  to  Foreign  Corporations 349 

State's  Power  to  Exclude  Foreign  Corporations 349,350 

Corporations,  Contracts  by 232,  587 

Powers  of 587 

Ultra  Vires 588 

Abandonment  of  Corporate  Enterprise 588 

Corporations,  Torts  by 541 

Corporeal  Things 152 

Corroborative  Evidence  '. 494 

Counties,  Nature  and  Duties  of 41-43 

Ofllcers  of   41 

Business  Matters  of 41 

How  Far  Representatives  of  Sovereignty 41,42 

Governmental  Functions  of 42 

Business  Functions  of 42 

Suits  By  and  Against 42 

Torts  by  42 

Creation  of 42 

Subdivisions  of   42 

Liabilities  of  183 

Courts,  Purpose  of 16 

Courts    59,  60,  447-459 

Definition  447 

Judicial  Function   447 

Judges 44S 


INDEX.  f)39 

PAGE 

Jury - 449 

Indictment  449 

Clerks   450 

Sheriffs  450 

Attorneys  at  Law 450 

Different  Kinds  of 451-460 

Common  Law   82,  451-456 

Forms  of  Action  in 454-456 

Courts  of  Equity  82,  456-460 

Origin    456 

Jurisdiction  457 

Proceedings   457,  458 

Blended  Jurisdiction    450,  459,  460 

Punishments  Inflicted  by  441 

Remedies  to  Private  Parties  221-224,  442-446 

Preventive   , 443 

Redressive 443 

Damages  443-446 

Courts,  Power  to  Grant  Divorces  284-287 

As  Between  Bona  Fide  Residents  of  the  State 284 

As  Between  Resident  Plaintiff  and  Non-resident  Defend- 
ant  284-287 

On  Personal  Service,  Within  the  State 284 

On  Voluntary  Appearance 284 

On  Extraterritorial  Service  284-287 

By  Weight  of  Authority  284-287 

Under  Haddock  v.  Haddock  285 

Courts,  Trials  in 507-509 

Courts,  Appellate,  Trial  in 509 

Courts,  Duty  and  Power  to  Determine  Constitutionality  of  Stat- 
utes         34-38 

Covenants    t 610,  611 

Coverture   179-181 

Effect  of  Upon  Contract 232 

Credibility  of  Witnesses  502 

Matters  Involved  in 502 

Creditors,  Conveyances  in  Fraud  of  239 

Crimes,  Classification  of 612 

Crime,  Mental  Conditions  as  Affecting 8, 158 

Liability  of  Infants  for 178 

By  Insane  Persons 151 

Married  Woman's  Liability  for  180 

Of  one  Spouse  as  Affecting  the  Other 283 

Effected  by  Locality  222 

Contrasted  with  Torts  535 


040  INDEX. 

PAGE. 

Criminal   Law    134,  441,  511-532 

General  Discussion 511 

Common  Law  Crimes 512 

None  Under  the  Federal  Law 512 

Crimes,  Classification  of  512 

Treason  512 

Felony 513 

Misdemeanor  513 

Defining  Crimes,  a  Legislative  Function  514 

Mental  Capacity,  Motive  and  Intent  in  Crime 515-520 

Motive  515-518 

Intent    515-518 

Ignorance   515,  519 

Evidence,  Mental  Condition  519 

Ignorance  and  Mistake   519 

Duress 520 

Parties  Who  May  Commit 521-523 

Insane  Persons 521 

Infants    521 

Married  Women 521 

Principals     522 

Accomplices    . 522 

Accessories    522 

Innocence,  Presumption  of 521 

Does  Not  Apply  to  Mental  Incapacity 522 

Punishments    523,  524 

Common  Law  523 

Statutory    523 

Assessing    524 

Classification  of  Offenses . .         524 

Procedure  in  Criminal  Courts 525-529 

Examining  Trials    525 

Trials  Upon  the  Merits   525 

Juries    526 

Pleadings  by  the  State 526 

Grand  Juries 526 

Presentments    526 

Indictment  527 

Information  527 

Complaints    527 

Pleadings  by  the  Defendant  527 

Arraignment   528 

Evidence 528 

Charge  and  Verdict 528 

Judgments   528 


INDEX.  641 

PAGE. 

Constitutional  Guaranties  In  Criminal  Matters 529-532 

In  Constitution  of  the  United  States  529 

In  State  Constitutions 530 

Criminal  Prosecution,  as  Affecting  Liability  for  Torts 536 

Cumulative  Evidence  495 


D. 

Damage    443-446 

Definition   / 443 

Measurement    443-446 

Injury  to  Things  443-445 

Injury  to  Rights  Against  Particular  Persons 445 

Violation  of  Personal  Rights 445,  446 

For  Torts  540,  541,  543 

Actual 540,  543 

Exemplary   543 

As  Against  Abnormal  Persons 541 

Damages 654 

Injury  to  Property  554 

To  the  Body  189,191,554 

Mental  Suffering  as  192,  554 

For  Continuing  Nuisances  554 

In  Defamation  567 

For  Breach  of  Contracts  of  Agency 310,  311 

Liability  of  Joint-Actors  312 

Evil  Motive  as  Affecting 543 

Defamation  206-207,  564-568 

Character   206 

Reputation  206 

Right  to  Reputation,  Extent  of 207 

Truth  as  a  Defense  Against  Defamation 207 

Privileged  Communications   207 

Absolute    , 207,  208 

Conditional    207,  208 

Definition  564 

Publication    564 

Nature  of  the  Idea  Conveyed 564 

Interpretation  of  the  Words 564 

Falsity  of  Statement 565 

Must  Concern  Another 566 

Without  Legal  Excuse  566 

Malice  Not  Necessary 566 

Libel  and  Slander,  Distinction  Between  566 

Absolute  Privilege    566 

41 


642  INDEX. 

PAGE. 

Conditional  Privilege  567 

Damages     567 

Statements  Actionable  Per  Se 567 

Not  Actionable   Per  Se    568 

Death    274-277 

Legal  Effects  of 275-277 

Of  Owner,  Effect  on  Property  Rights 413-415 

Injuries  Resulting  in  219,  579-581 

Deed,  When  May  be  Shown  to  be  Mortgage 487 

Debts  of  Deceased  Person   276,277 

Deceit  ( See  Fraud)  245-263,  570 

Deceive,  Intent  to  in  Fraud 245 

Deception  as  to  Law  163 

Declaration   of  Independence    29,  85,  86 

De  Facto  Corporations 347,  348 

General  Doctrines  347 

Definition  347 

Essentials    348 

Rights  and  Liabilities  as  to  Private  Persons 348 

Rights  and  Liabilities  as  to  State 348 

Defenses,  Number  of  473 

Defining  Crimes,  a  Legislative  Function 514 

Delirium  Tremens 152, 177 

Demurrers  471 

Denizens    148 

Depositions    478 

Design  157 

Divine  Law  142 

Dilatory  Pleas 471 

Direct  and  Proximate  Cause  in  Cases  of  Accidents  165 

Direct  Evidence  494 

Directors  of  Corporation 344 

Disaffirmance  of  Contracts  by  Infants   585 

Disclosure,  When  a  Duty  255,  256 

Discharge  of  Contracts  (See  Contracts,  Discharge  of) 621-626 

Discovery  as  Method  of  Acquiring  Property 357 

Discrimination  by  Common  Carriers 423-425 

Disposition  of  Property 204 

Power  of  as  Element  of  Ownership 356 

District  Courts,  Federal,  Jurisdiction  of 64 

Districts,  Political  Subdivisions  Known  as 40 

Dividends,  Definitions   343,  344 

Divorce    284-287 

Can  Only  be  Granted  by  the  State 234 

Two  Kinds  of 384 


INDEX.  643 

PAGE. 

Regulated  by  Statute 284 

Granted  by  Decree  of  Court .284-287 

Jurisdiction  Over  the  Parties  in  Suits  for 284-287 

As  to  Non-resident  Parties   284,  285 

Haddock  v.  Haddock,  Possible  Results  of 285,  286 

General  Rules  as  to  284,  287 

Domestic  Relations  278-292 

Marriage  and  Family 278-283 

Common  Law  Marriage 279 

Statutes  Regulating   279 

Competency  of  Parties 281 

Effects  of  281 

Is  a  Status  282 

Definition  of  Family   282 

Liabilities  of  One  Spouse  for  Conduct  of  the  Other. ...         283 

Domicile  of  the  Wife 283 

As  Affecting  Divorce  Proceedings 284-287 

Drunkards,  Contracts  of  586 

Drunken   Persons    152 

Drunkenness   176 

Delirium  Tremens 177 

As  Affecting  Crime 521 

Duress    152, 177,  601,  602 

By  Imprisonment   602 

Per  Minas 602 

Effect  in  Criminal  Law 177,  520 

In  Tort  Law 177 

In  Contract  Law  177, 197,  602 

Duties,  Legal    13-15 

Not  Assignable 13 

Delegation  of  Performance 13 

Duties,  Conduct  Violative  of,  Unlawful  7 

Duty,  Legal,  Definition  9, 144 

Mandatory  Nature  of 159 

Non-assignable  at  Law 15, 171-173 

In  Criminal,  Tort  and  Contract  Law,  How  Fixed 10 

Creation,  Modification  and  Termination  of 10 

Agreement  as  Affecting 10 

Failure  of,  Necessary  to  Negligence  551,  552 

When  Disclosure  is   255,  256 

As  Between  Principal  and  Agent 311 

Dying  Declarations 496 


644  INDEX. 

E. 

PAGE. 

Easements    376,  381-383 

Definitions  j 381 

In  Gross  382 

Appurtenant    382 

Rights  of  Way  as 383 

Injuries  to 674 

Ecclesiastical  Law    136 

Education,  Public,  Department  of 77 

Elective  Franchise    212 

Eminent  Domain  23 

Transfer  of  Title  Under  365,  366 

By  the  Federal  Government 365 

By  State  Government 365 

What  is  a  Public  Use 366 

Power  of  in  the  United  States 93, 12i;  122 

Employer  and  Independent  Contractor   (See  Independent  Con- 
tractor)              312 

Entire  Contracts   612 

Entity,  Legal,  Partnership  is  Not 314 

Equitable  Misrepresentation   258,  571 

Estate    153 

Estates    386-391 

Fee  Simple 386 

Fee  Tail  386 

Freehold  386 

Leasehold    387 

Reversions  387 

Remainders  387 

Mortgages    3S8 

Deeds  of  Trust 389 

By  Courtesy .' 389 

Dower   390 

In  Common  390 

Coparcenary    390 

Joint  Tenancy 390 

Equity  134, 135 

Equity,  Conception  of  Fraud 248-250 

Misrepresentation  in   249 

Equity,  Courts  of  82,456-459 

Escheat 366 

Lands  of  Corporations 367 

Lands  of  Aliens 367 

Estates  of  Deceased  Persons 274-277 

Administration  of 276,277 


INDEX.  645 

PAGE. 

Estoppel    11.  264,  265 

By  Deed  264 

In  Pais   264,265 

Elements  of 265 

Agency  by 308,  309 

Pleading  •         472 

Evidence 475-506 

Who  Must  Prove  475-477 

Burden  of  Proof   475-477 

Necessity  of  Introducing  Further  Testimony 475-477 

What  Must  be  Proven 477 

Substance  of  the  Issue  477 

Means  of  Proof  477 

Witnesses  477-479 

Competency  477 

Swearing 478 

Oral  Examinations   478 

Depositions    478 

Written  Instruments   479-488 

Classification  of  479-481 

Genuineness,  How  Proved  481 

Best  Evidence  Rule •  •  •  •         482 

Relaxation  of  Rules  482-485 

Exceptions  to  Rule  486-488 

Demonstrative  or  Real   483-489 

Nature  of  Matters  Which  May  be  Introduced 490,  491 

Facts   490 

Opinions   490 

Expert  Witnesses   490 

Classifications    of    491-495 

Original  and  Hearsay  492»  493 

Primary  and  Secondary   493.  494 

Direct  and  Circumstantial  494 

Contradictory  and  Corroborative 494 

Independent  and  Cumulative 495 

Res  Gestae   495 

Dying  Declarations 496 

Admissions    496-498 

Confessions 496-498 

Relevancy    498-500 

Definition  of  498 

Tests  of   , 49M" 

Examples  of   4" 

Functions  of  Judge  and  Jury  as  to 500-605 

In  Common  Law  Courts  500-505 


646  INDEX. 

PAGE. 

Chancery  Courts   501 

Admission  of  Testimony  for  the  Judge 501 

Weight  for  the  Jury 502 

Credibility  of  Witnesses  502 

Weight  of  Evidence  502 

Elements  of 502-505 

When  Proof  is  Sufficient 505,  506 

In  Criminal  Law  505 

In  Civil  Law  506 

Evidence  in  Criminal  Cases   528 

Evidence,  Written  Contracts  as  617,  618 

Parol  Evidence  Regarding  618 

Evil  Motive  in  Law  of  Torts 159-160 

Examination  of  Witnesses  478 

Examining  Trials   525 

Executed  Contracts 228 

Executive  Power  22 

Executive  Department  of  the  States  76-78 

Governor    76 

Lieutenant  Governor 76 

Heads  of  Executive  Departments 76-78 

Department  of  State 76 

Treasury 77 

Public   Accounts    77 

Department  of  Justice 77 

Public  Education  77 

Insurance    77 

Land  Department  77 

Executive  Officers,  Minor 78 

Executors  and  Administrators,  Contracts  by  Under  the  Statute 

of  Frauds 593 

Executory  Contracts 228 

Exemplary  Damages  ' 543 

Ex  Post  Facto  Law  137 

Expert  Witnesses   490 

Express   Contracts    229,  611 

Express  Powers  of  Congress 51-53 

Extradition  Between  States 97 

Extraordinary  Governmental  Agencies 82,  83 

Extraterritorial  Service 466-468 

How  Obtained 465,  466 

Effect  as  to  Citizens .466,  467 

Effect  as  to  Non-resident,  Non-citizen 466, 467 


INDEX.  647 
F. 

PAGE. 

Pact,  Mistake  of 12 

Facts,  Distinction  Between  and  Opinion  in  the  Law  of  Fraud. . . .  251 

As  Evidence   490 

False  Imprisonment  562 

Family  (See  Marriage  and  Family). 

Definition  of  7,  282 

Federal  Criminal  Law  612 

Federal  Government  (See  United  States,  Government  of). 

Federal  Judicial  System  63-69 

District  Courts  64 

Circuit  Courts    64-66 

Circuit  Court  of  Appeals 66 

Supreme  Court 67-69 

Federal  Practice 69 

Federal  Question,  Cases  Involving 68,  69 

Federal  States 27,  28 

Fellow   Servants    297-299 

Felony    513 

Fences    395 

Fictions,  Legal  17 

Fighting,  Injuries  Received  in  269 

Fire,  Right  to  Enter  Land  to  Put  Out 394 

Firm  Debts  and  Assets 315 

Fixedness  , .  16 

Fixtures   381 

When  Part  of  the  Land 380 

Trade  Fixtures  381 

Attached  by  Trespasser   381 

Force,  Use  of  on  the  Body 191,  268 

Foreign  Corporations  348-350 

Definition  349 

As  Citizens   349 

Comity,  as  to 349 

State's  Right  of  Exclusion  349,  350 

Rights  Under  Interstate  Commerce  Clause  350 

Jurisdiction  of  Federal  Courts  Over 350 

Foreign  Nations,  Intercourse  With  58 

Forfeiture 367 

Formation  of  the  Government  of  United  States  88-90 

Drafting  the  Constitution  89 

Mode  of  Adopting  the  Constitution  89,  90 

Organization  of  Government  Under 90 

Form  as  Essential  to  Agreement 202,  236-238 

Forms  of  Action  at  Common  Law 455,  456 


648  INDEX. 

PAGE. 

Franchise,  Definition  of   324 

Fourteenth  Amendment  Constitution  of  the  U.  S 48,  49 

Fraud    12, 197,  245-263,  569-573,  59S-601 

General  Conception  of 12,  245,  246 

Legal  Conception  of  246-251 

Common  Law   247,  248 

Equitable    248-250 

Per  Se 250 

Facts   251 

Past  or  Present  251 

Materiality 252 

Means    253,  256 

Misrepresentation    254 

Concealment    254 

Non-disclosure 255,  256 

Injury  to  the  Deceived 256 

Parties  Affected  by 257 

Classifications  of  257-261 

Actual     257 

Constructive    257 

Per  Se 257 

Deceit    257 

Equitable  Misrepresentation   258 

In  Inducement  258 

In  Esse  Contractus 258-261 

Remedies  for 261 

In  Inducement  261 

In  Esse  Contractus  261 

Upon  Persons  Not  Parties  to  the  Transaction  262 

Effects  Upon  Legal  Rights  262,  263 

As  a  Tort 569-573 

Deceit  at  Common  Law 570 

Misrepresentation   in   Equity    570 

Elements   of    570 

Voluntary  Statements  as  571 

Concealment  as   572 

Nondisclosure  as  572 

Remedy  for  572,  573 

As  Affecting  Agreement 197,  598-601 

Elements  of 599-601 

Representation   599 

Falsity 599 

Fact   599 

Materiality    ; 600 

Knowledge  of  Falsity 600 


INDEX.  649 

PAGE. 

Intent  to  Influence  601 

Deception     , 601 

Action  by  the  Deceived  601 

Fraud  In  Inducement 258,  259 

Fraud  in  Esse  Contractus 260,261 

Freedom  of  Action 194-196 

Extent  and  Nature  of  194 

Limitations  on  194, 195 

Habeas  Corpus  to  Protect 195 

Bill  of  Rights  Guaranteeing 195 

Freedom  of  Speech  205 

Funds,   Corporate    345,  346 

Freight,  Liability  of  Common  Carrier  for 423 

G. 

Games,  Involving  the  Use  of  Force,  Right  to  Engage  In 268,  269 

General  Ownership  9,  215,  216 

Limitations  on  216 

Genuineness  of  Assent 596-609 

Mistake  596-598 

Of  Law  596 

Of  Fact 597 

Misrepresentation  and  Fraud 598-601 

Elements  of 599-601 

Representation   599 

Falsity    599 

Fact 599 

Materiality    '      600 

Knowledge  of  Falsity 600 

Intent  to  Influence  601 

Deception  601 

Action  by  the  Deceived  601 

Genuineness  of  Written  Instrument  Must  be  Proved 481 

Gibbons  v.  Ogden 99-101 

Gifts    234,  407 

As  Affecting  Title  361 

Good  Will 411 

Government,  General  Discussion  20-24 

Creation  of   4 

Definition  4,  20 

Purposes  of  20, 139, 140 

Three  Departments  of 22 

Raising  Revenue  by  23 

Eminent  Domain   23 


650  INDEX. 

PAGE. 

Police  Power   23,24 

Administration  of 6 

Relations  to  the  Individual 6 

Governments,  Separation  Between  State  and  Federal 5 

Powers  of  Are  Trusts 5 

Government  of  the  United  States 5,28-32,88-91,92-96,279,530 

Organization  of  28-32 

Suits  Against   530 

No  Jurisdiction  Over  Marriage  and  Divorce 279 

Governmental  Agencies,  Extraordinary    82,83 

Legal  Liabilities  of 181-187 

Remedies  Through   221-224 

Governmental  Control  Over  Public  Utilities 418,  419 

Governor    75, 76 

Grand  Juries 525,  526 

Gross  Negligence 243 

Guarantees  in  the  Federal  Constitution  to  the  Several  States  . .     83, 84 
Guardian  and  Ward  291,292 

H. 

Habeas  Corpus 195 

Haddock  v.  Haddock  as  Affecting  Extraterritorial  Service 468 

Haddock  v.  Haddock,  Probable  Effects  of  in  Divorce  Proceed- 
ings     285,  286 

Hearsay  Evidence  492,  493 

What  is   492 

Objections  to 493 

Generally  Not  Admissible   493 

Hereditaments    378 

Homicide 191 

Crime  at  Common  Law  191 

Not  a  Tort  at  Common  Law 191 

Lord  Campbell's  Act  191 

Homicide  as  Affected  by  Intent  517 

Homicide  as  a  Tort 579 

House  of  Representatives  of  the  United  States 60,  51 

House  of  Representatives,  Election  of  President  by 54 

Human  Law  as  Expressive  of  Moral  Ideas 140-143 

Husband  and  Wife  7. 179-181,  653 

Husband  and  Wife,  Legal  Identity  of 167 

Husband  and  Wife,  Liabilities  of  Each  for  the  Conduct  of  the 

Other  283 

Husband  and  Wife,  Rights  and  Duties  Between 281-284 

Husband,  Alienation  of  Wife's  Affections  578 

Husband  Liable  for  Tort  of  Wife 642 


INDEX.  651 

I. 

PAGE. 

Identity    14 

Ignorance  in  Criminal  Law  12, 153,  515-520 

Ignorance  and  Mistake  in  Criminal  Law 519,  520 

Illegality  of  Purpose  as  Affecting  Agreement  200,  201 

Illegitimate  Children   289 

At  Common  Law  289 

Immunities    324 

Implications  in  Law 272 

In  Fact  273 

Implied   Contracts    230,  611 

In  Fact 230 

In  Law  231 

Implied  Powers  of  the  United  States  Government 101-109 

Impossibility  of  Performance  as  Discharge  of  Contract 624 

Imputed  Negligence 553 

Incorporeal  Things  76, 152, 153,  376,  408-413 

Incorporeal  Personal  Property  408-413 

Choses  in  Action  409 

Patents   409 

Copyrights   410 

Good  Will    411 

Trade  Marks  411-413 

Choses  in  Action  409 

Definition   409 

Assignability    409 

Torts  Against  577 

Increase,  Title  to  Follows  That  of  the  Thing  Producing 360 

Indemnity    14,  262-263,  545,  546 

Among  Parties  to  Fraud 262,  263 

And  Contribution  Among  Tort  Feasors  545,546 

Independent   Agency    .' 15 

Independent  Contractor 294,  312,  313,  542 

Liabilities  of  313 

Liability  of  Employer  for  Conduct  of  313 

Distinguished  from  Servant 294 

Torts  by  542 

Independent  Evidence  495 

Indictment  449,  527 

Inducing  Breach  of  Contracts 578 

Infancy  177-179 

Who  Are  Infants   177 

Effect  in  Criminal  Law 177,  521 

In  Tort  Law  178,541 

In  Contract  Law  179,232,585,586 


652  INDEX. 

PAGE. 

Infants,  as  Principals 305,306 

As  Agents    305,306 

Infants,  Contractual   Capacity    585,  586 

Avoidance  by    585,  586 

For  Necessaries  586 

Crimes  by   521 

Torts  by  541 

Influence,  Intent  to  in  Fraud   245,  246 

Inheritance    276,  364,  414 

Information,  Prosecution  by 527 

Injury  as  an  Element  of  Fraud  256 

In  Nuisance 557-559 

Injuries  Resulting  in  Death   219,  579-581 

Innocence,  Presumption  of 505,  521 

Does  Not  Apply  to  Mental  Incapacity 522 

Innocent  Purchaser   400 

What  Constitutes 400 

Inquiry,  Putting  on 273 

Insane   Persons    150, 151 

Criminal  Liability  of 151,  521 

Agreements  by  151,  586 

Torts  by  151,  540 

Restraint  of 151 

Insanity    150, 151, 176,  281,  521 

Insurance,  Department  of,  State  77 

Intent  in  Criminal  Law   515-520 

Intent  In  the  Law  of  Fraud  246-251 

International  Law 125 

Interstate  Carriage  427,  428 

Interstate  Commerce  Clause   99-101 

Intervening  Agency  In  Legal  Cause  174,  551 

Issues    463,  470,  477 

Methods  of  Presenting  and  Joining  470 

Substance  of  Must  be  Proven 477 

•* 

J. 

Joint-actors    312,  542,  543 

Extent  of  Liability  of  Each  for  Conduct  of  the  Other  ....  312 

Contribution  Between   312 

Evil  Motive  of  543 

Liability  for  Torts  542 

Joint  and  Several  Contracts  612 

Joint  Contracts  ' 612 

Joint  Stock  Companies,  Torts  by 541 


INDEX.  653 

PAGE. 

Joint  Tort  Feasors,  Liability  of 545-553 

Extent  of 545 

Joint  and  Several  545 

Judgment  Against 545 

Satisfaction  of   545 

Judge    448 

Duties  as  to  Evidence  500 

Judgment   368,  508,  509,  510,  528 

Revision  of   508,  509 

Transfer  of  Title  by 368 

Enforcement  of  510 

In  Criminal  Cases 528 

Judicial  Department,  State  Governments  78-82 

Judicial  Power  of  States 78 

Matters  Over  Which  Jurisdiction  of  Federal  Courts  is  Ex- 
clusive    79 

Concurrent  Jurisdiction  of  State  and  Federal  Courts  ....     79,  80 

Exclusive  Jurisdiction  of  State  Courts 80 

State  Judicial  Systems  80-82 

Judicial  Department  of  the  United  States  Government 59-69 

Judicial  Function   59,  60,  447 

Judicial  Power 22 

Of  the  United  States  Government 60-63 

Of  State  and  Federal  Governments  Largely  Concurrent. .  94 

Judicial  System  of  the  United  States  (See  Federal  Judicial  Sys- 
tem). 

Jurisdiction   463-468 

Necessity  for   463 

Potential 463 

Active 463 

In  Proceedings  in  Personam  464 

In  Rem  464 

Quasi  In  Rem  464 

Active    465-468 

How  Acquired  Over  Persons 465-468 

Voluntary  Submission 465 

Citation    465-468 

Jurisdiction  of  a  Court  59,  60 

Original    60 

Appellate    60 

Exclusive    60 

Concurrent    60 

Of  a  Case,  How  Acquired  461-468 

Parties    461 

Things    462 


654  INDEX. 

PAGE. 

Subject  Matter  462 

Issues    463 

Jurisdiction,  What  is 463 

Proceedings,  Kinds  of  464 

Potential    464 

Active    465-468 

Jurisdiction  of  the  Federal  Courts 64-69 

Jurisdiction  of  State  and  Federal  Courts  Compared 79,  80 

Exclusive  Jurisdiction  of  Federal  Courts  79 

Concurrent  Jurisdiction  of  State  and  Federal  Courts 79,  80 

Jury    449,  450,  501-503,  507,  525,  526 

Grand    449 

Petit    449,  450 

Duties  as  to  Evidence 501-503 

Jury  Service  ! 213 

Justice  and  Law 16, 140-143 

K. 

Kidnapping 578 

Kohl  v.  United  States 121,122 

L. 

Laches    270 

Land   378  383,  391 

What  Included  in  378-383,  391 

Immobility  as  Characteristic  of 379 

Water  as  379 

Minerals  as  379 

Fixtures  as 380,381 

Easements  as  381-383 

Land,  sale  of   237,  307,  592 

Violation  of  Rights  in  401 

Lateral  Support  401 

Law,  Agency  by 309 

Law,  General  Conception 1.  6, 124 

Conduct  as  Subject  Matter  of 6 

Persons  as  Subject  Matter  of  6 

Things  as  Subject  Matter  of 6 

Different  Kinds   125-138 

Based  Upon  Morality  139-143 

Subject  Matter  of  146 

Growth  of   16 

Violation  of 12 

Ignorance  of  12 


JNDKX.  655 

PAGE. 

Misrepresentation  of  12 

Due  Process  of 210,  211 

Equal  Protection  of 209 

Need  Not  be  Plead  470 

Law  of  the  Land 210 

Law  Merchant   136 

Consideration  In   236 

Law  and  Justice 16, 140-143 

Leases 593 

Legal  Causation 15 

Legal  Duty  (See  Duties,  Legal). 

Legal  Entity,  Corporation  is  318 

Corporation  as,  Not  a  Party  to  Charter  Contract 338,339 

Charter  as  Law  of  Being  to 339,  340 

Legal  Fictions   17 

Legal  Liability,  Extent  of 174, 175 

Legal  Responsibility  as  Affected  by  Status 176-187 

Legal  Rights  and  Their  Classification  (See  Rights)   188-224 

Legal  Sanctions  8,  437-446 

Legal   Sanction , 437-446 

Necessity  for 437 

Meaning  of  ..       437 

Courts   438 

Classifications  of  438 

Rewards   439 

Penalties    439-446 

Preventive  439 

Redressive   439 

Self-help   440 

Applied  by  Governmental  Agencies 440 

Public   441 

Private  Remedies  442-446 

Preventive  Remedies  443 

Redressive  Remedies   443 

Damages 443-446 

Legal  Standards 139, 140 

Legality  of  Object  in  Contracts 200,  201,  238,  239,  308,  603-609 

Forbidden  by  Common  Law 604 

Forbidden  by  Statute 604 

Construction  of 604 

Effect  of  Illegality 605 

Agreement  Fully  Executed 238,  605 

Performed  on  One  Side 238,  605 

Participation  in  a  Wrong 606,  607 

Agreement  Growing  Out  of  Illegal  Agreement 607 


056  INDEX. 

PAGE. 

Assignees  of  Illegal  Agreement 607 

Partially  Illegal  608 

Classification  of  Illegal  Agreements  608 

Legislation,  a  Function  of  Sovereignty  22, 105 

President's  Powers  in  Connection  With ; .  58 

Legislative  Department  of  the  United  States  Government   (See 
Congress  of  the  United  States). 

Legislative  Department  of  State  Governments  74,  75 

Legislative   Bodies    74, 75 

Two  Houses 74 

Manner  of  Enacting  Laws  74,  75 

Veto  by  Governor 75 

Legislative  Powers  of  the  States  75 

Legislative  Function  to  Define  Crimes 514 

Legislative  Powers  of  the  Federal  Government  (See  Congress)..     49-53 
Legislative  Powers  of  State  and  Federal  Governments  Usually 

Exclusive    93 

Legislature,  State  74,  75 

Legislature,  Power  to  Determine  Existence  of  Facts  Necessary  to 

Its  Jurisdiction   39 

Legitimate  Children  287-289 

Liability  for  Tort,  Discharge  of 544,  545 

Agreement  544 

Suit    544 

Limitation    545 

Libel   (See  Defamation)    206-208,  564-568 

Liberty    139, 194 

Liberty  of  Speech  205,  206 

License   12, 159,  235,  266-269,  392-395 

Definition  266 

By  Law 266 

By  Person  Affected  267-269 

Resulting  from  Agreement  Lacking  Consideration  ..        267 

Resulting  from  Agreements  Lacking  Form   268 

Unlawful  Agreements  as  Creating 268 

On  Land  392-395 

Impliedly  Given  by  Owner ".  * .  393 

Expressly  Given  by  Owner 393 

Revocable  393 

Given  by  Law 394 

Trespass  ab  initio 394 

Lieutenant  Governor  76 

Light,  Nuisances  as  to 560 

Limitation   11,  270,  271,  362 

As  a  Defense  271 


INDEX.  657 

PAGE 

As  a  Basis  of  Right 271,402 

Disabilities    271 

Limitations  on  Powers  of  the  States  in  Federal  Constitution 84 

Locality,  Effect  on  Remedial  Rights  222-224 

Crimes 221 

Torts    223 

Contracts    224 

Limitations  on  Sovereignty 19 

Lord  Campbell's  Act   191,  579 

Lunatics,  Contracts  of  ( See  Insane  Persons )  686 

M. 

Malicious  Prosecution   663 

Definition   663 

Contrast  with  False  Imprisonment 563 

"When  Cause  of  Action  Arises 563 

Majority,  When  Attained  288 

Manufactured  Article,  Rights  of  Owner  of  Material  in 358 

Manumission  of  Children  288 

Maps  as  Evidence  489 

Marbury  v.  Madison  34-38 

Marital  Domicile  as  Affecting  Divorce  Proceedings  284-287 

Maritime  Law   138 

Marriage    7, 149, 167, 179-181 

Between  Citizens  and  Aliens,  Effects  of  149 

Effect  of  at  Common  Law  167 

Effect  Upon  Legal  Capacity  of  Woman 179-181 

Married  Women 179-181,  283,  305,  306,  521,  541 

Status  Under  the  Common  Law 179 

Power  to  Bind  Her  Husband  180 

Power  to  Contract   180,587 

Contracts  by  232 

Crimes  by 180,283,521 

Torts  by  180,  283,  541 

Domicile  of  283 

Citizenship  of 283 

As  Principals   305,306 

As  Agents    305,306 

Martial  Law    138 

Master  When  Responsible  for  Tort  of  Servant 642 

When  Evil  Motive  of  Servant  is  Imputed  to 543 

Master  and  Servant  169,  293-304,  546,  553 

Who  Are   169,  293 

Relation  Based  on  Contract  293 

42 


t>58  INDEX. 

PAGE. 

Distinguished  from  Principal  and  Agent 294 

Distinguished  from  Employer  and  Independent  Contractor        294 

Who  May  be  295 

Rights  and  Duties  Between 295-302 

Right  to  Fix  by  Agreement 295 

As  at  Common  Law  296-301 

Care  as  to  Premises 296 

As  to  Appliances 296 

As  to  Selection  of  Servants  296 

As  to  Rules  296 

Fellow  Servant  Rule   297 

Limited  by  Statutes  as  to  Railroad  Companies  ..        297 

Vice-Principals    298 

Non-assignability  of  duty 299 

Assumption  of  Risk  300 

Compensation   and   Reimbursement    301 

On  Breach  of  Continuing  Contract 301 

Servant's  Duties   302 

Ending  of  the  Relation  302 

Liability  of  Each  for  Conduct  of  the  Other 302-304 

Each  Responsible  for  His  Own  Wrong 303 

Master  Responsible   for   the   Wrong  of  the   Servant 

Within  the  Scope  of  the  Employment 303 

Nonassignability  of  Master's  Duties  303 

Indemnity  Between  in  Case  of  Torts 546 

Materiality  in  the  Law  of  Fraud 252 

McCulloch  v.  Maryland  101-115 

Means  of  Proof  477-489 

Members  of  Congress,  Election  of 48 

Membership  in  Stock  Corporation  342-344 

How  Acquired 342 

Rights  Incident  to 343 

Dividends,  Definition  of   343,  344 

Liabilities    344 

Mental  Capacity,  Standard  of  162 

Mental   Conditions    7,  8, 157-165,  515-520 

Unmanifested    7 

Motive  8, 157,  515 

Intent    8, 157,  515 

Purpose 8 

In  Criminal  Law  8, 158,  515-520 

In  Tort  Law  8, 159, 161 

In  Contract  Law  8, 161-162 

Mental  Suffering  as  Element  of  Damage 192, 193 

Methods  of  Infringing  Trademarks  413 


INDEX.  659 

PAGE. 

Military  Law    138 

Mind,  Security  to 191-193 

Injuries  Involving  Impairment  of  Faculties  192, 193 

Minerals   379 

In  the  soil 379 

When  Separated  from  the  Soil 379 

Minor  Political  Subdivisions  40-45 

Minority,  When  Ceases 288 

Minors  (See  Infants). 

Misdemeanor 613 

Misrepresentation  of  Law 12 

Misrepresentation  in  Fraud  254 

Mistake  12, 163, 197,  519 

Of  Fact 12 

As  Affecting  Agreements  197,596-598 

Of  Law  • 696 

Of  Fact 597 

In  Criminal  Law 519,  520 

Moral  Nature,  Laws  Protection  of 141-143 

Moral  Right  as  Element  of  Political  Power 18 

Morality,  Basis  of  the  Law 139-143 

Morals,  Protection  to  193 

Motions  474 

Motive 157,  201,  242,  515-520,  543 

Distinguished  from  Consideration  201 

As  Affecting  Negligence  242 

In  Crime   515-520 

Evil,  When  Imputed 543 

Between  Joint  Actors 543 

Husband  and  Wife 543 

Master  and  Servant  543 

Principal  and  Agent 543 

Municipal  Corporations,  Torts  by  540 

Municipal  Law  ( See  Law)   125 

Definitions  of  125-127 

Blackstone's  Definition   125 

Bouvier's  Definition   126 

Author's  Definition  127 

Different  Kinds  of 128,129 

Common  Law   128, 133 

Unwritten  Law 128 

Written  Law  129-132 

Constitutions  as 130, 131 

Statutes  as 131 

Treaties  as 132 


660 


INDEX. 


PAGE. 

Substantive   132 

Adjective    132 

Public    133 

Private    133 

Roman  Law 133 

Civil  Law 134 

Criminal  Law  134 

Equity 134 

Contract   135 

Tort  136 

Law  Merchant 136 

Ecclesiastical    136 

Ex  Post  Facto  137 

Retroactive    137 

Military    138 

Martial   138 

Maritime    138 

Munn  v.  People  of  Illinois 123 

N. 

Nation,  Sovereignty  In 3 

Natural  Conditions  Not  Nuisances 559 

Naturalization    147, 148 

Exclusive  Jurisdiction  of  In  Federal  Government 147 

Who  May  be  Naturalized  147 

Process  of   148 

Effects  of  148 

Necessaries,  Contracts  of  Infants  for 586 

Necessary  Powers  Under  the  Federal  Constitution,  Discussed. . .  .106-109 

Necessity,  Agency  by 309 

Negligence   242-245,  547-554 

Definition  of  242,243,547 

Wilf ull    242,  547 

Inadvertent   242,  547 

Standard  of  Care 547 

Matter  of  Law  or  of  Fact 548 

Contracts  Against  Liability  for  549,  550 

Contributory   550 

Remote  and  Proximate  Cause  in  Cases  of 551 

Failure  of  Duty  Necessary  to  551 

Contributory   552 

Gross 243 

Standard  of  Care 243 

Per  Se 244 


INDEX.  661 

PAGE. 

Of  Common  Carriers  244 

Imputed   553 

Remedies  for 554 

Negotiable  Instruments 203,  236,  591,  612 

New  States 72,  73,  92 

New  Trial   508 

Nonassignability  of  Duty 13, 15, 171-173 

Of  Master's  Duties  299,  300 

To  Third  Party  303 

Non-age  as  Affecting  Marriage  281 

Non-disclosure  in  Fraud  255,  256 

Disclosure  When  a  Duty 255,  256 

Non-liability  of  Members  of  Corporations  325 

Normal  Persons  6, 149 

Note,  Promissory 613 

Notice    272-274 

Knowledge 272 

Ignorance  272 

Definition  of 272 

Implied  in  Law   272 

Implied  in  Fact  273 

Of  Filing  Pleadings 473 

Novation    622 

Nuisance    654-561 

Definitions  of 554-557 

Injury  from   557 

Natural  Conditions  Not 559 

Must  Interfere  With  Ordinary  Person  559 

Injury  Direct  Result  of  Wrong 559 

In  Water,  Light,  and  Air 660 

Rights  of  Way 661 

Remedy  for 664 

O. 

Object,  Legality  of  in  Contract* 603-609 

Obligation,  Legal,  Definition  9, 144 

Offer  and  Acceptance  (See  Contracts)  583,  584 

Office  Holding 213 

Officer,  Federal,  Salary  of  Cannot  be  Taxed  by  the  State 116 

Federal,  Appointment  of 67 

Liabilities  of 186-187 

Discretionary  Acts  185 

Ministerial  Acts 186 

Official  Discretion   186 


662  INDEX. 

PAGE 

Right  to  Enter  Premises 394 

Torts  by  540 

Official  Capacity  May  be  Proved  by  Parol 486 

Opinions  as  Evidence 490 

Experts 490 

Non-experts   490,  491 

Original  Evidence  492 

Owner  of  Material,  Rights  in  Manufactured  Article 358 

Ownership    153,  351-369 

Definition  9 

General  Conception  351 

Elements  of 9,  215,  352-356 

Possession    353,  354 

Use  \ 355 

Profits  355 

Right  to  Change 356 

Disposition    356 

Acquisition    217,  218,  356-370 

Methods  of,  Classification   356,357 

Discovery  357 

Production  357 

Increase    360 

Legal  Succession  to  the  Rights  of  Another 360-370 

By  Act  of  Both  Parties 361 

By  Act  of  Transferee 362 

By  Act  of  Transferor 363 

By  Operation  of  Law , 364 

By  Act  of  Governmental  Agencies 365 

For  Public  Purposes 365-369 

Eminent  Domain  365 

Under  Taxing  Power  366 

By  Escheat   366 

By  Forfeiture  367 

By  Suits  in  Protection  of  Private  Rights 367-369 

General  373 

Special    217,  218,  373,  374 

Limitations  on 370-373 

Not  of   Itself  Basis  of  Liability   for  Injuries  by  Thing 
Owned  173 

P. 

Papers  Beyond  Jurisdiction  of  Court,  How  Proven 484 

In  Possession  of  a  Witness,  Production  of 484,485 

In  Possession  of  Adverse  Party 485 

Pardoning  Power  of  the  President 66 


INDEX.  663 

PAGE. 

Parent  and  Child 10,  287-291,  553 

Legitimate  Children  287 

Duties  to   288 

Rights  of  as  Between  Parties •• 288 

Rights  and  Duties  as  to  Third  Parties 289 

Illegitimate  Children  289 

By  Adoption   289,  290 

Transfers  of  Parental  Authority  291 

Respective  Rights  and  Duties 214 

Parent  Not  Liable  for  Tort  of  Child  542 

Parental  Authority,  Transfer  of 291 

Parol  Contracts   617 

Parol  Interpretation  of  Written  Words  486 

Parol  Testimony  in  Connection  with  Written  Instruments  ....482-488 

Parol  Sales  of  Land 237 

Particular  Persons,  Rights  Against 213,  214 

Parties  to  Suit 461 

Active  Jurisdiction  Over 465-468 

Parties  to  Fraud,  Adjustments  Between  262,  263 

Affected  by   257 

Parties,  Liability  for  Crime 521 

Insane  Persons 521 

Infants    521 

Married  Women  521 

Parties  to  Contracts 584-588 

Natural  Persons 584 

Aliens   585 

Infants    585 

Lunatics  and  Drunkards 586 

Married  Women 587 

Corporations   587 

Competency  of  in  Contract  of  Agency 305,  306 

Competency  to  Marry 281 

Partners,  Different  Kinds 315 

Liability  for  Firm  Debts  315 

Partnership   313» 316 

Definition  313 

Involves  Both  Co-operation  and  Substitution 313 

Not  a  Legal  Entity 314 

Created  by  Agreement 314 

Termination  of 315 

Assets  and  Liabilities  315 

Torts  by  315,  541 

Scope  of  the  Business  316 

Different  Kinds  of 31<5 


664  INDEX. 

PAGE. 

Passengers,  Duty  of  Common  Carriers  to 422,  552 

Right  of  Carrier  to  Refuse 425 

Patents   409 

Penalties    437-446 

Criminal  438 

Preventive   439 

Redressive   439 

Public 441 

Enumeration  of  441 

People,  A  3 

People  of  the  United  States,  Powers  of 3 

Of  the  States,  Powers  of 3 

Performance,  Discharge  of  Contract  by 623 

Personal    Property    154,  392,  404-413 

Transfers  of  Title  to  405-407 

Sales    405 

Things  Sold 405 

Potential  Existence    405 

Price  in  Money 406 

Caveat  Emptor 406 

Warranty  of  Title  406 

Barter  407 

Gifts    407 

Bailments    407,  408 

Definition   407 

What  May  be  Bailed 407 

Three  Kinds  of 408 

Torts  Against  575-578 

Ownership  of    575 

Trespass  Upon   . .' 576 

Replevin  576 

Detinue 576 

Trover 576 

Remedies  for   576 

Interference  With  Under  Process 576,  577 

Process  Fair  on  Its  Face 577 

Incorporeal  Chattel  Interests   577 

Personal  Rights  9, 189-208 

Bodily  Security    189-191 

Security  to  the  Mind 191-193 

Security  to  Morals 193 

Freedom  of  Action  194-196 

Persons  146-1 52 

Definition  of  6,146 

Natural  and  Artificial   6, 146 


INDEX.  665 

PAGE. 

Normal  and  Abnormal 6 

Citizens    146 

Naturalization    147» 14S 

Subjects    148> 149 

Aliens    '••••         149 

Sui  Juris  or  Normal  I49 

Non  Sui  Juris  or  Abnormal 150-152 

Insane   Persons    150,151 

Legal  Liabilities  of 151 

Legal  Restraints  Over 151 

Under  Duress   152 

Drunken  152 

Care  Required  of  Common  Carriers  of 244 

Rights  in   9,218,219 

Petition,  Right  of 213 

Photographs  as  Evidence  489 

Physical  Defects  as  Affecting  Marriage 281 

Physical  Force  as  Element  of  Political  Power 18 

Physical  Injury,  Damage  for  191-193 

Pleadings   469-477,507 

General  Discussion  469 

Definition 469 

Issues,  How  Presented  and  Joined 470 

Law  Need  Not  be 470 

Facts  Must  be  Fully 470 

Defensive  471-473 

Dilatory  Pleas   4?1 

In  Bar 47i 

Demurrers  47* 

Denials  471 

Confession  and  Avoidance 471 

Estoppel  472 

Order  of  472 

Names  of  Different  Instruments 472 

Number  of  Defenses  473 

Amendments   47s 

Notice  of  Filing 473 

In  Criminal  Cases  525-528 

Pleas,  In  Bar  471 

Dilatory    471 

Poisoning   564 

Police  Power 23«  24 

Cannot  be  Contracted  Away •  •  •  24 

Political  Power    4« 18 

General  Discussion  18-45 


666  INDEX. 

PAGE. 

Moral  Right,  Element  of 18 

Physical  Force  as  Element  of 18 

Political  Organization,  Theoretical  Consideration   25-28 

In  the  United  States 28-32 

Political  Rights  10, 148,  212,  213 

Suffrage    212 

Office  Holding 213 

Right  of  Petition 213 

Who  May  Enjoy 148 

Political  Subdivisions  of  the  States 40-45 

Possession  as  Proof  of  Title  402 

Possession    353-355 

Actual   353 

Constructive    353 

Unlawful,  Good  Against  Trespasser 374 

Postponements  and  Continuances 507 

Powers  of  Congress,  Express 51-53 

Implied   99-109 

To  Create  Courts 60 

Powers  of  Corporations  321-325 

Practicability  of  Law   140-143 

Practice  in  the  United  States  Court  69 

Precincts,  Legal  Status  of 184 

Prescription    362 

Presentments    526 

President  of  the  United  States 53-58 

Presidential  Succession  53 

Manner  of  Election    48, 54 

Connection  with  Executive  Departments   55,  56 

Pardoning  Power 56 

Treaties    57 

Appointing  Power  57 

Powers  in  Connection  with  Legislation 67 

Sending  Messages   58 

Veto  51, 58 

Intercourse  with  Foreign  Nations  58 

Presidential  Succession  53 

Presumption    17 

Conclusive   17 

Rebuttable   17 

Of  Innocence 521 

Does  Not  Extend  to  Mental  Capacity 522 

Principal  and  Agent   305-312 

Primary  Evidence  493 

Substitution  Involved  In 805 


INDEX.  667 

PAGE. 

Agency,  How  Formed 305 

Agency,  by  Agreement 305-309 

Parties  to  Agreement 305,  306 

As  Affecting  Agency  Contract 305 

As  Affecting  the  Agency  Act 306 

Consideration    306 

Legality  of  Purpose  306 

Form    307,  308 

When  Formed .    308 

Ratification    , 308 

Agency  by  Estoppel  309 

Agency  by  Law   309 

By  Necessity  309 

Termination  of  the  Relation  310 

Duties  of  Parties  as  Between  Themselves 311 

Right  as  Against  and  Liabilities  to  Third  Parties  311 

As  Example  of  Substitution 169 

Distinguished  from  Master  and  Servant  169,  294 

Principal,  When  Responsible  for  Tort  of  Agent 542 

Principals,  in  Crime   522 

Principles,  Legal  1, 3-17 

Private  Law 133 

Private  Corporation,  Definition  (See  Corporation)    317 

Private  Property  Charged  with  Public  Uses 434-436 

General  Discussion  434 

Munn  v.  People,  Discussion  of 434 

Right  to  Regulate 434,  435 

Absence  of  Competition   435 

Monopolistic  Tendencies  435 

Privileged  Communications  566,  567 

Absolutely  Privileged 560 

Conditionally  Privileged  567 

Probability    504 

Procedure  In  Appellate  Court  509 

In  Criminal  Case 525-529 

(See  Criminal  Law.) 

In  Trial  Court 507-509 

Proceedings  in  Personam  464,  467 

Quasi   In  Rem    464,  468 

In  Rem  464,  467,  468 

Process,  Abuse  of 576,  577 

Fair  on  Its  Face  577 

Production,  as  Basis  of  Ownership  358-360 

Profits  as  Element  of  Ownership  355 

Proof,  Sufficiency  of  505,  506 


668  INDEX. 

PAGE 

Criminal  Law   505 

Civil  Law   606 

Promises  to  Give  234 

Property   9, 153,  203,  204,  351-415,  404-413,  554 

General   Consideration    351-415 

Personal    404-413 

Injury  to   554 

Rights  to  Acquire,  Hold  and  Dispose  of 203,204 

Property  Rights,  Limitations  on 370-373 

Police  Power   370 

For  the  Protection  of  Individuals 371-373 

On  Use   371 

On  Profits    372 

On   Disposition    373 

Propriety    141 

Definition  8 

Legal    139,  140 

Proximate    Cause    174, 175,  544 

Publication  in   Defamation    564 

Public  Conscience  16 

Public  Corporation,  Definition   317 

Public  Duties,  from  Public  Utilities 419 

Public  Good 6 

Public  Highway,  When  Obstructed  394 

Public    Law    133 

Public   Opinion    16 

Public  Policy  as  Basis  of  Liability  in  Secondary  Range  of  Con- 
duct              173 

Public,  Protection  by  Law  511 

Public  Records,  Provable  by  Copy 483 

Public  Sentiment  and  Law 140-143 

Public  Uses,  Private  Property  Charged  With 434-436 

Public  Utilities   416-434 

Matters  Purely  Public   416 

Enumeration  of 417 

Governmental  Control  Over   418 

Special    Privileges    418 

Duties  to  the  Public,  Enumeration  419 

Punishments     521,  523,  524 

Common  Law 523 

Statutory 523 

Assessing    524 

Enumeration    of    441 

Purchasers,    Innocent    400 

Putting  on   Inquiry    273 


INDEX.  669 

Q. 

PAGE 

Qualifications  for  Suffrage 49 

Quasi   Contracts    239-241 

Common  Law  Forms  of  Action  as  Affecting 240 

Basis  Principle  in  241 

E. 

Railroad   Commissions 82,83 

Ratification,   Agency   by    308 

Real  and  Personal  Property  391 

Real   Estate    391 

Real    Evidence    488,  489 

Real  Property   153 

Receipts,  Parol  Explanation  487 

Registration  of  Title 399 

Relations  Between  the  Government  of  the  United  States  and  of 

the  States   85-98 

Relations,  Domestic   278-292 

Relationship  of  Parties  as  Affecting  Marriage 281 

Relevancy    498-500 

Definition    498 

Tests  of   498 

Instances  of   499 

Religious  Organizations,  Torts  by 541 

Remainderman,  Waste  Against   574 

Remedial    Right    12 

Remedial   Rights   10,  220-224 

Classification    220 

Self-Help    220 

Remedy  Through  Governmental  Agencies 221-224 

Compensatory     221 

Preventive  221 

Relation  to  Right  221 

Effect  of  Locality  Upon 222-224 

Crimes    222 

Torts     223 

Contracts    224 

Remedies 440,  442-446 

Self-help     440 

Preventive    443 

Redressive    443 

Damages     443-446 

For  Bodily  Hurt 554 

For  Injury  to  Property  554 


670  INDEX. 

PAGE 

For  Negligence   554 

Remedy  (See  Remedial  Rights) 15,  220-224 

And   Right,  Relations  Between 221,222 

As    Between    Conspirators 269 

Award    of    510 

For  Breach  of  Contracts  of  Agency 310,311 

For    Fraud    258,261 

Remote  and   Proximate  Cause 174,175,  544 

In   Negligence    551 

Removal  of  Causes  from  State  to  Federal  Courts 80 

Republican  Form  of  Government,  Guaranteed  to  the  States....     72,  73 

Reputation 565 

Right  to   (See  Defamation). 

Residence  of  Parties,  as  Affecting  Divorce  Proceedings 284-2S7 

Responsibility  as  Dependent  on  Mental  Capacity 162 

Res  Adjudicata   16 

Res  Gestae    495 

Retroactive  Laws   137 

Revenue,  Raising 23 

Reversioner,  Waste  Against 574 

Rewards 439 

Right  and  Remedy,  Relations  Between 221,  222 

Right,  Equality  of   6 

Legal,  Definition  8 

Of  Petition    213 

To  acquire,  Hold  and  Dispose  of  Property 203,  204 

Distinction  between  and  Ownership   202 

To  Carry  on  Business   (See  Business). 

To  Contract    197-204 

Definition     197 

Agreement,  Definition  197 

Effect  of  Mistake  on  197 

Effect  of  Duress   197 

Effect  of  Fraud  on   197 

When  Enforcable  as  a  Contract 199-203 

Parties    199 

Purpose    200 

Consideration   201 

Form     , 202 

To  Form  Special  Relations   205 

To  Freedom  of  Conscience 206 

Extent    of    20tJ 

Limitations    on    206 

To  Freedom  of  Thought 206 

To  Reputation    (See  Defamatilm). 


INDEX.  671 

PAGE 

To  Vote  (See  Voting)   48,  49 

Rightness     8, 141 

Rights   and   Duties,  Legal ■ 8-15 

In  Criminal  and  Tort  Law  Fixed  by  Sovereign 10 

In  Contract  Law,  by  Assent  of  Parties 10 

Rights,  Legal,  Fundamental  Conceptions .143-145 

Definitions    of    143,144,188 

Duty  as  Related  to  144 

Who  May  Have   144 

Protected  by   Criminal   Law 144 

Protected  by  Civil  Law   144,  145 

Protection  of,  Sole  Purpose  of  Private  Law 188 

No  Legal  Wrong  except  by  Invasion  ot 188 

Classification  and  Enumeration  of 188,  189 

Personal   189-208 

What  Included  in 189 

Bodily   Security    189-191 

How  Secured    189 

Use  of  Force  Upon  Body  Unlawful  191 

Exceptions     191 

Security  to   the  Mind    191-193 

Impairment  of  Faculties    191-193 

Mental    Suffering    192.193 

Security   to   Morals    193,  194 

Freedom   of  Action    - 194-196 

Limitations    on    194,  195 

Habeas    Corpus    195 

Bill   of  Rights 195 

Against  Particular  Persons   10,  213,  214 

Dependent  Upon  Contract    213 

Not  Dependent  on  Contract   214 

Between   Parent  and  Child 214 

In   Persons    9,  218,  219 

Between  Husband  and  Wife   219 

Between  Parent  and  Child    ,. 219 

Between  Master  and  Servant  219 

Compensation  for  Death  of  Another 219 

Changes  in    225-227 

By  Conduct  Violative  of  Criminal  Law 226 

Rights,  Assignment  of    12 

Rights,  Conduct  Violative  of,  Unlawful 7 

Rights,  Exercise  of  Through  Substitute  13 

Rights  in  Land,  Violation  of    401 

Rights  in  Rem  Under  Contract   614 

Rights  in  Things 9,  214-218 


672  INDEX. 

PAGE 

Rights  in  Water  (See  Water). 

Rights  on  Property,  Limitations  on  370-373 

Rights  of  Third  Parties  Under  Contracts  613 

Rights   of   Way    383,561 

Nature   of    _ 561 

Rights,  Personal   9 

In   Things    9 

Rights,  Political    10 

Remedial     10 

Creation,  Modification  and  Termination  of 10 

Agreement  as  Affecting  (See  Political  Rights) 10 

Rights,  Private,  Protection  of  440-446 

Self-help     440 

Protection  Through  Governmental  Agencies  440-446 

Public   Penalties    441 

Private  Remedies   442-446 

Preventive     443 

Redressive    443 

Damages    443-446 

Rights,  Remedial    (See  Remedial  Rights) 220-224 

Roman  Law    133 

Marriage   Under    167 

s. 

Salary  of  Federal  Officer  Cannot  be  Taxed  by  State  Government.         116 
Salary  of  State  Officer  Cannot  be  Taxed  by  Federal  Government.115-121 

Sales  of  Personal  Property  361,  594 

Sales  Under  Execution   369 

Sanctions,  Legal    59 

Sanity,  Test  of 7 

School  Districts.  Legal  Status  of 184 

Scope  of  Agency  Employment  311 

Of  Employment  of  Servant  303 

Seal  as  Affecting  Consideration  202,  235,  588 

Contracts    Under    591 

Second  Continental  Congress.  Provisions  by  for  Declaration  of 

Independence  and  Articles  of  Confederation 85-87 

Secondary    Evidence    493 

Secretary  of  State,  State  76 

Seduction,  as  a  Tort   578 

Self-defense     220.  517 

Self-help     15,  220,  440 

Senate  of  the  United  States  49-51 

Election  of  Vice  President  by 54 


"      INDEX.  673 

PAGE. 

Servant,  Definition  of  ( See  Master  and  Servant)   292 

Servant's  Right  to  Compensation 301,  302 

On  Breach  of  Contract  for  Continuing  Service 301 

Duties  of   302 

Service  by  Common  Carriers 420-422 

Severable  Contracts    612 

Several  Contracts 612 

Shares  of  Stock  340-342 

Slander  (See  Defamation)   206,208,564-568 

Of  Title 574 

Sovereign,  Legal  Rights  of 9 

Sovereignty   

General  Discussion 18-45 

Definition  of   18 

Limitation  of   19 

Division  of  Between  State  and  Federal  Governments  ....  19 

Investiture  of  .\ 19 

Organization  of  Governments  by  20 

Determinative  Power 22 

Applicatory  Power   22 

Executive  Power  22 

Functions  of 22-24 

Self-preservation    22 

Intercourse  With  Other  Sovereigns  22 

Internal  Government  22 

Subdivisions  of  Territory 22 

Raising  Revenue  23 

Eminent  Domain  23 

Police  Power 23,  24 

Sovereignty  as  Tort  Feasor 539 

Sovereignty,  Considerations  Controlling  in  Enacting  Laws 140-143 

Sovereignty,  Control  Over  Its  Citizens 466 

Sovereignty,  Division  of  c+ 3,  28,  91 

Sovereignty,  Division  Between  the  States  and  Federal  Govern- 
ment     4,  99-101, 106, 123 

Duties  of   4 

Delegation  of   4 

Three  Phases  of  Power  in  4 

National    3 

State S 

Sovereignty,  Duty  to  Afford  Protection 16 

Sovereignty  of  the  Soil  402 

Sovereignty,  Purposes  in  Establishing  Government 139, 140 

Sovereignty,  States  and  United  States  Each  Sovereign  Within 

Its  Sphere   117, 118 

43 


Li  74  INDEX. 

PAGE. 

Special   Ownership    9,  217,  218 

Speech,  Freedom  of 205 

Sport,  Involving  the  Use  of  Force,  Right  to  Engage  in 268 

Standards,  Legal .139, 140 

Stare  Decisis 16 

State  Cannot  Tax  Salary  of  Federal  Officer 116 

State  Carriage    427,  428 

State  Constitutions  73,  74 

State  Courts,  Revision  of  Judgments  by  Supreme  Court  of  the 

United  States  in  Cases  Involving  Federal  Questions 68-69 

States,  Sovereignty  in  3 

Reserved  Powers  of  32, 117-121, 123 

Antedated  the  Confederation 29-31,  86,  87 

Powers  of    91 

Status  Before  Entering  Union 100 

Effect  of  Adoption  of  the  United  States  Constitution  Upon.  84, 100 
Division  of  Sovereignty  Between,  and  the  Federal  Gov- 
ernment      19,118 

Guarantees  to  in  Federal  Constitution 83,  84 

Legislative  Powers  of   74,  75 

Rarely  Concurrent  With  Powers  of  the  Federal  Gov- 
ernment    75 

Power  to  Regulate  Suffrage 48,  49 

Exclusive  Jurisdiction  Over  Marriage  and  Divorce 279 

Control  Over  Common  Carriers  427,  428 

Have  No  Power  to  Tax  Instrumentalities  of  the  Federal 

Government    109-114 

Subdivisions  of   40-45 

Liability  to  Suit  182 

Torts  by  539 

Different  Kinds,  Unitary   25,  26 

Confederations    26 

Federal   .*. 27,  28 

States  of  the  Union,  Relations  Between 96-98 

Usually  Regarded  as  Foreign  to  Each  Other 96 

Must  Give  Full  Faith  and  Credit  to  Acts  of  Each  Other. .  96 

Privileges  and  Immunities  of  Citizens  of  One  Not  to  be 

Abridged  in  Others  97 

Extradition  Between    97 

Forbidden  to  Make  Treaties,  etc 97 

Forbidden  to  Lay  Imposts,  etc 98 

New   92 

State  Government,  General  Discussion  71-84 

Historical  Development  of  71-73 

Effect  of  Constitution  of  United  States  Upon 71 


INDEX.  675 

PAGE. 

Powers  of 72 

Guarantees  in  the  Federal  Constitution  to 72 

New  States 72 

Form  of  Government  in 73 

Constitutions  of 73 

Legislative  Departments  of  (See  Legislative  Departments)     74,75 
Executive  Departments  of  (See  Executive  Departments) . .     76-78 

Judicial  Department  of  (See  Judicial  Department) 78-82 

State  Judicial  Systems    80-82 

Instrumentalities  of  Cannot  be  Taxed  by  Federal  Govern- 
ment     114-121 

State  Officer,  Salary  of  Cannot  be  Taxed  by  Federal   Govern- 
ment   115-121 

Status  as  Affecting  Legal  Responsibility 176-187 

Mental  Unsoundness 176 

Drunkenness 176 

Duress    : 177 

Infancy  177-179 

Coverture  179-181 

Governmental  Agencies  181 

Direct  Representatives  of  Sovereignty 181 

Federal  Government 181 

States    182 

Counties  and  Other  Political  Subdivisions  183 

Cities  and  Towns 183, 184 

Precincts  and  Townships  184 

Officers    185-187 

As  Affecting  Parties  to  Torts  539 

Jurisdiction  Over 466-468 

Statute  of  Frauds  202,  237,  238,  307,  591-595 

Contracts  for  Sale  of  Land  592,  593 

By  Executors  and  Administrators  592,  593 

To  Answer  for  the  Debt  of  Another 593,  594 

Not  to  be  Performed  Within  a  Year 594 

Sales  of  Goods,  Wares,  and  Merchandise 594 

What  is  a  Written  Contract  Under  595 

Effect  of  Non-compliance  595 

Sales  of  Real  Estate 592 

As  Affecting  Form  of  Contracts  202 

As  to  Authority  of  Agent  to  Convey  Land 307 

Statutes    34-38,  74,  75, 131, 132 

Enactment  of  by  the  States  74,  75 

Contrary  to  Constitution,  Void  34-38 

Allowing  Damages  for  Injuries  Resulting  In  Death 579-581 

Statutory  Marriage 279 


676  INDEX. 

PAGE. 

Stock,  In  Corporations 340-342 

Shares  of  ..< 340 

How  Acquired 341 

Assignment  of  342 

Membership  Incident  to 343 

Streams    397-399 

Definition  397 

Domestic  Uses  of  Water 398 

Commercial  Uses  of  Water 398 

Subject  Matter  of  Law j  6 

Subject  Matter  of  Suit,  Jurisdiction  Over 462 

Subordinate  Executive  Officers   78 

Subscription  to  Shares  of  Stock  341 

Subsisting  Marriage  as  a  Bar  to  a  Second  281 

Substantive  Law 132 

Substituted  Contract   622 

Substance  of  Issue  Must  be  Proven  477 

Substitution 13, 14, 168-170 

Doctrine,  Effect,  and  Scope  of 168, 169 

Master  and  Servant  as  Example  of '    169 

Depends  on  Agreement  169 

As  Involved  in  the  Relation  of  Principal  and  Agent 311 

As  Involved  in  Partnership  . . 313 

Subterranean  Water  , 395 

Succession  to  the  Rights  of  Another 360-369 

Sudden  Peril 553 

Suffrage  and  Its  Regulation 48,  49 

Right  to  Vote  Derivative  48 

Regulated  by  the  States  Except  as  Affected  by  the  14th 

Amendment,  Constitution  of  U.  S 48 

Limitations  Upon  ( See  Political  Rights  and  Voting) 148 

Supreme  Court  of  the  United  States,  Jurisdiction  of 63,67,69 

Appellate  Jurisdiction   67-69 

Original  Jurisdiction    67 

Surface  Water  397 


T. 

Taxation,  General  Discussion .95, 109-114 

Power  to  Sell  Property  Under 366 

Federal    Government    Cannot    Tax    Instrumentalities    of 
State  Governments  114-121 

Telegraph  and  Telephone  Companies  430-434 

Are  Public  Utilities 431 

Not  Cmmnon  Carriers 431 


INDEX.  677 

PAGE. 

_    ..         - 432,433 

Duties  of  •* ' 

Legal  Similarity  of  the  Two 

m      .  i         623 

Tender 37g 

Tenements < ;;;;;384,385 

Tenures    > 8g 

The  Confederation    

87 
Nature  of •  * ' 

Status  of  States  Under  ■  ••••     °''°° 

_., 7,152-154 

Things 152 

Definition '        . 

Corporeal  and  Incorporeal  7» 152'  J  * 

Ownership,  Elements  of • 

„  , 153 

Estates „_„ 

_,.,  153 

Ti«es 

Real  and  Personal  Property 

Permanent  and  Transitory   ••• 376 

Moveable  and  Immoveable  • 

377-383 

???   "; 214-218 

Rights  in  

Rights  In  Rem  

Ownership,  Elements  of  

Possession    

TT  215 

Use 

215 
Profits   from 

Modification  of • • 

Disposition  of • """^'oifi 

Limitations  on   

917   218 

Special   Ownership    "•' 

217 

Illustrations  of 

217  218 
How  Acquired * 

Things,  Jurisdiction  Over 

How   Acquired    

Third  Parties,  Rights  Under  Contract • 

Thought,  Freedom  of 

Title 153,374,402. 

Cloud  Upon  and  Slander  of 

399 
Registration  of 

To  Increase  Follows  That  of  the  Thing  Producing 360 

Transfer  by  Judgment 3 

Transfer  by  Contracts •  •         36/ 

Tort,  Mental  Conditons  as  Affecting  Liability 159-161 

Actual  Damage • 

Exemplary  Damage 

General   Conception   

Civil  Law,  Contract  Law,  Tort  Law 533 


678  INDEX. 

PAGE. 

Definition  534 

Contrasted  With  Crimes  and  Breach  of  Contract 535-537 

How   Committed    537-539 

Parties   to    539-542 

Person  Injured 539 

Wrong  Doer 539-542 

Sovereignty  539 

Federal  Government 539 

State  Government  539 

County    183,  539 

Cities  and  Towns 183, 184,  540 

Public  Officers 540 

Natural   Persons    540 

Insane  Persons  151,  540 

Infants    178,  541 

Married  Women  180,  541 

Combinations  of    541,  542 

Corporations    541 

Partnerships   • 315,  541 

Joint  Stock  Companies   541 

Religious  and  Charitable  Organizations  541 

Who  Are  Responsible  for  .'....         542 

Normal  Persons 542 

Husband  285,  542 

Parent  542 

Master    542 

Principal  and  Agent 542 

Employer  and  Independent  Contractor 542 

Damages    543 

Actual   543 

Exemplary  543 

For  What  Consequences  of  Liability  Attaches  544 

Discharge  of  Liability  for 544 

Indemnity  and  Contribution  Among  Tort  Feasors 545 

Against  Personal  Property 575-578 

Against  Rights  Which  One  Person  Has  in  Another 578-581 

Violative  of  Bodily  Right  562,563 

As  Affected  by  Locality  223 

Tort  Feasors  539-541 

Tort  Law   136 

Mental  Condition  in  8 

Towns,  Liabilities  of   183, 184 

Torts  by  (See  Cities)   540 

Townships,  Legal  Status  of 184 

Trade   Marks    411 


INDEX.  679 

PAGE. 

Definition  411 

Value  of  412 

Rules  Governing  412 

Treason 512 

Treasurer,  State 77 

Treaties    57, 132 

Trespass  568,  569 

What  is 568 

Upon  Land    401,  569 

To  Personal  Property 569 

Trespassers,  Care  as  to  552 

Trials    507-510 

Dockets  507 

Postponements  and  Continuances 507 

Jury  ■ 507 

Pleadings 507 

Evidence 507 

Charge    507 

Verdict    508 

Judgment   508 

New  Trials   508 

Appeal    -N 509 

Procedure  in  Appellate  Court  509 

Trials  Upon  the  Merits  525 

Trover  and  Conversion,  Effect  of  Action  of  on  Title 368 

Truth  as  a  Defense  in  Defamation 207,  565 

Trust  Fund  Theory  as  to  Corporate  Funds 345,  346 

u. 

Ultra  Vires,  General  Discussion  331-333 

As  to  Agreements 331 

As  to  Torts  333 

Undue  Enrichment,  Doctrine  of  241 

Undue  Influence 603 

Unitary  States  25 

United  States   '. 28-32,  85-98, 118-122 

Organization  of  Governments  in   28-32 

Political  Organizations  Within  85-98 

Historical  Development 85-87 

Powers  of 91 

Eminent  Domain  121»  122 

Relations  Between  and  the  States  118, 119 

United  States,  Government  of 49-70, 101-109 

Executive   Department    53-58 

President    53-58 


680  INDEX. 

PAGF. 

Presidential  Succession  53 

Manner  of  Election 54 

Different  Departments 55,  56 

Nature  and  Extent  of  Its  Powers 70,  92 

Power  of  Eminent  Domain 93 

Legislative  Powers  of  Usually  Exclusive  of  the  State  Pow- 
ers      93 

Judicial  Powers  Largely  Concurrent 94 

Executive  Usually  Exclusive 95 

Taxation  by 95,  9G 

Implied  Powers  of  101-109 

Is  by  and  of  the  People 101 

Is  One  of  Enumerated  Powers 102 

Is  Supreme  Within  Its  Sphere 102 

When  Powers  May  be  Implied  103 

Has  Power  to  Make  All  Law  Necessary  and  Proper  to 

Accomplish  Its  Purposes   106 

Discussion  of  the  Word  "Necessary" 106-109 

Express  Limitations  on   70 

Control  Over  Common  Carriers  427,  428 

Powers  as  to  Naturalization   147, 148 

Liability  to  Suit 181 

United  States  and  State  Governments,  Their  Relations  to  Each 

Other  46-123 

Comparisons  of    46-49 

States  Have  Primary  Power,  Federal  Government  Dele- 
gated Power   46, 47 

Two  Governments  Distinct  and  Separate  47 

Legislative  Powers  Usually  Exclusive   47 

Respective  Powers  as  to  Suffrage 48,  49 

United  States  Government  Cannot  Tax  Instrumentalities  of  the 

State  Governments  114-121 

United  States  Government,  States  Cannot  Tax  Its  Instrumentali- 
ties    109-114 

Use  as  Element  of  Ownership 355 

Usury    373 

V. 

Veazie  Bank  v.  Fenno 114 

Verdict    508 

Verdict  in  Criminal  Cases 528 

Veto  by  President  51 

By  the  Governor  76 

Vice  President   53 

Manner  of  Election 54 


INDEX.  681 

PAGE. 

Vice  Principals '- 298,  299 

Violation  of  Rights  in  Land 401 

Voting 48,49,148,212 

Is  Political  Right   48,  49,  212 

Not  a  Primary  but  a  Derivative  Right 148,  212 

Definition  of •  •        212 

State's  Duty  Regarding *        212 

W. 

Waiver   •        269 

Discharge  of  Contract  by 622 

Waste • •  • 573>  574 

Positive    '•..'• 573 

Permissive 573 

Ward  (See  Guardian  and  Ward). 

Water 3™>  395-399 

As  Land • •  •         379 

Subterranean    395-397 

Surface 397 

In   Streams   .397-399 

Stream,  What  is 397 

Domestic  Uses    398 

Commercial  Uses  398 

Nuisances  in  660 

Water  and  Light,  Right  to  Use  Acquired  by  Prescription 363 


Water  Course,  Definition 


391 


Way,  Rights  of,  Nuisances  Regarding 561 

Weight  of  Evidence  502-505 


Meaning  of  Statement 


503 


Probability  of  Statement  • 504 

Consistency  With  Other  Facts 504 


Relevancy 


505 


What  May  be  Owned  375 

Wife's  Rights  at  Common  Law 281 

Agent  of  Husband  168 

Evil  Motive  of  Imputed  to  Husband  543 

Alienation  of  Husband's  Affections 578 

Willful  Negligence   242«  547 

Wills    275,363,414 

Witnesses  477"479 

477 

Competency  of 

Manner  of  Swearing 478 

478 

Oral  Examination   

Depositions    478 

Expert 490 

I 


082  INDEX. 

PAGE. 

Words  and  Phrases,  Construction  of 620 

Writs    510 

Written  Contracts  (See  Contracts)    591-595 

Written  Contract,  Proof  of   617-619 

Existence  of  Document  617 

That  the  Document  is  a  Contract 618 

As  to  Terms  618 

Written  Instruments   479-488 

Classifications  of   479-481 

Genuineness  of,  How  Proven 481 

Best  Evidence  Rules   482-488 

Rule  I,  Instrument,  Proof  of  Its  Contents 482 

Relaxations  of  Rule  I 483-486 

Rule  II,  Contents  Proof  of  Legal  Effect 482 

Exceptions  to  Rule  II   486-488 

Wrong  Doing   155,156 

Wrongs,  Local  and  Transitory  223, 224 

X. 
X-ray  Pictures  489 


APPENDIX. 


FEDERAL  JUDICIAL  SYSTEM. 

Brief  Summary  of  Judiciary  Act,  Approved  March  3rd,  1911,  which 
goes  into  effect  Jan.  1st,  1912. 

This  is  a  very  important  act  reorganizing  the  entire  Federal  Judicial 
System.  It  incorporates  into  one  statute  all  the  acts  of  Congress  ere* 
ating  Federal  Courts  and  defining  their  jurisdiction,  and  also  a  great 
many  of  the  statutes  regulating  procedure  in  these  courts.  It  is,  there- 
fore, properly  designated  as  "An  act  to  codify,  revise,  and  amend  the 
laws  relating  to  the  judiciary"  as  set  out  in  the  title,  or  "The  Judicial 
Code"  as  declared  in  the  body  of  the  act.  The  principal  change  made 
by  it  in  tie  regular  system  of  courts  is  the  abolition  of  the  Circuit 
Courts  and  the  transfer  of  a  very  large  part  of  the  jurisdiction  now 
pertaining  to  these  courts  to  the  District  Courts.  All  of  the  jurisdiction 
is  not  transferred.  For  example:  In  suits  arising  under  the  Constitu- 
tion and  laws  or  treaties  of  the  United  States  or  between  citizens  of 
different  states,  or  between  citizens  of  a  state  and  foreign  states,  citi- 
zens or  subjects,  the  present  minimum  jurisdictional  amount  in  the  Cir- 
cuit Court  is  $2,000,  while  in  the  "Code"  the  minimum  amount  in  the 
new  District  Courts  is  $3,000. 

The  new  District  Courts  are  to  retain  substantially  all  the  jurisdic- 
tion the  present  District  Courts  possess. 

The  jurisdiction  of  the  Circuit  Courts  of  Appeal  remains  practically 
unchanged,  as  does  that  of  the  Supreme  Court,  except  as  changes  in 
the  powers  of  the  District  Courts  and  the  other  special  courts  carry  with 
them  resultant  changes  in  the  courts  of  revisory  jurisdiction. 

As  the  Act  has  not  yet  gone  into  effect,  and  consequently  none  of  its 
provisions  have  been  construed,  it  might  prove  presumptuous  to  speak 
more  definitely  of  its  effect,  so  I  content  myself  with  the  foregoing  very 
general  statements  and  a  substantial  setting  out  of  a  few  of  its  more 
Important  provisions. 

Chapter  One  deals  with  the  Organization  of  the  District  Courts. 

"Section  1.  In  each  of  the  Districts  described  in  Chapter  5,  there 
shall  be  a  court  called  a  District  Court,  for  which  there  shall  be  ap- 
pointed a  judge,  to  be  called  a  District  Judge."  Here  follow  several 
Districts  in  which  there  shall  be  more  than  one  judge  and  several  which 
are  combined,  having  one  judge  in  two.  The  remaining  twenty-two 
sections  of  this  chapter  deal  with  the  organization  of,  and  procedure  in, 
the  several  District  Courts  provided  for. 


684  APPENDIX. 

Chapter  Two  deals  with  the  jurisdiction  of  the  District  Courts.  Sec- 
tions 24  and  25  are  as  follows: 

Sec.  24.     The  District  Courts  shall  have  jurisdiction  as  follows: 

First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
brought  by  the  United  States,  or  by  any  officer  thereof  authorized  by 
law  to  sue,  or  between  citizens  of  the  same  State  claiming  lands  under 
grants  from  different  States;  or,  where,  the  matter  in  controversy  ex- 
ceeds, exclusive  of  interest  and  costs,  the  sum  or  value  of  three  thou- 
sand dollars,  and  (a)  arises  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made,  or  which  shall  be  made,  under  their 
authority,  or  (b)  is  between  citizens  of  different  States,  or  (c)  is  be- 
tween citizens  of  a  State  and  foreign  States,  citizens,  or  subject.  No 
District  Court  shall  have  cognizance  of  any  suit  (except  upon  foreign 
bills  of  exchange)  to  recover  upon  any  promissory  note  or  other  chose 
in  action  in  favor  of  any  assignee,  or  of  any  subsequent  holder  if  such 
instrument  be  payable  to  bearer  and  be  not  made  by  any  corporation, 
unless  such  suit  might  have  been  prosecuted  in  such  court  to  recover 
upon  said  note  or  other  chose  in  action  if  no  assignment  had  been 
made:  Provided,  however,  that  the  foregoing  provision  as  to  the  sum 
or  value  of  the  matter  in  controversy  shall  not  be  construed  to  apply 
to  any  of  the  cases  mentioned  in  the  succeeding  paragraphs  of  this 
section. 

Second.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction, 
saving  to  suitors  in  all  cases  the  right  of  a  common-law  remedy  where 
the  common  law  is  competent  to  give  it;  of  all  seizures  on  land  or 
waters  not  within  admiralty  and  maritime  jurisdiction;  of  all  prizes 
brought  into  the  United  States;  and  of  all  proceedings  for  the  condem- 
nation of  property  taken  as  prize. 

Fourth.     Of  all  suits  arising  under  any  law  relating  to  the  slave  trade. 

Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal  rev- 
enue, or  from  revenue  from  imports  or  tonnage,  except  those  cases 
arising  under  any  law  providing  revenue  from  imports,  jurisdiction  of 
which  has  been  conferred  upon  the  Court  of  Customs  Appeal. 

Sixth.    Of  all  cases  arising  under  the  postal  laws. 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the  patent, 
the  copyright,  and  the  trade-mark  laws. 

Eighth.  Of  all  suits  and  proceedings  arising  under  any  law  regulat- 
ing commerce,  except  those  suits  and  proceedings  exclusive  jurisdiction 
of  which  has  been  conferred  upon  the  Commerce  Court. 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of  penalties 
and  forfeitures  incurred  under  any  law  of  the  United  States. 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  drawback 
of  duties,  issued  under  any  law  for  the  collection  of  duties,  against  the 


APPENDIX.  685 

person  to  whom  such  debenture  was  originally  grantea,  or  against  any 
indorser  thereof,  to  recover  the  amount  of  such  debenture. 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  damages 
for  any  injury  to  his  person  or  property  on  account  of  any  act  done  by 
him,  under  any  law  of  the  United  States,  for  the  protection  or  collection 
of  any  revenues  thereof,  or  to  enforce  the  right  of  citizens  of  the  United 
States  to  vote  in  the  several  States. 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any  person 
for  the  recovery  of  damages  on  account  of  any  Injury  to  his  person  or 
property,  or  of  the  deprivation  of  any  right  or  privilege  of  a  citizen 
of  the  United  States,  by  any  act  done  in  furtherance  of  any  conspiracy 
mentioned  in  section  nineteen  hundred  and  eighty,  Revised  Statutes. 

Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought  against 
any  person  who,  having  knowledge  that  any  of  the  wrongs  mentioned 
in  section  nineteen  hundred  and  eighty,  Revised  Statutes,  are  about  to 
be  done,  and,  having  power  to  prevent  or  aid  in  preventing  the  same, 
neglects  or  refuses  so  to  do,  to  recover  damages  for  any  such  wrongful 
act. 

Fourteenth.  Of  all  suits  at  law  or  In  equity  authorized  by  law  to  be 
brought  by  any  person  to  redress  the  deprivation,  under  color  of  any 
law,  statute,  ordinance,  regulation,  custom,  or  usage  of  any  State,  of 
any  right,  privilege,  or  Immunity,  secured  by  the  Constitution  of  the 
United  States,  or  of  any  right  secured  by  any  law  of  the  United  States 
providing  for  equal  rights  of  citizens  of  the  United  States,  or  of  all 
persons  within  the  jurisdiction  of  the  United  States. 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except  that 
of  elector  of  President  or  Vice  President,  Representative  In  or  Delegate 
to  Congress,  or  member  of  a  State  legislature,  authorized  by  law  to  be 
brought,  wherein  it  appears  that  the  sole  question  touching  the  title 
to  such  office  arises  out  of  the  denial  of  the  right  to  vote  to  any  citizen 
offering  to  vote,  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude: Provided,  that  such  jurisdiction  shall  extent  only  so  far  as  to 
determine  the  rights  of  the  parties  to  such  office  by  reason  of  the  denial 
of  the  right  guaranteed  by  the  Constitution  of  the  United  States,  and 
secured  by  any  law,  to  enforce  the  right  of  citizens  of  the  United  States 
to  vote  in  all  the  States. 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by  di- 
rection of  any  officer  thereof,  against  any  national  banking  association, 
and  cases  for  winding  up  the  affairs  of  any  such  bank;  and  of  all  suits 
brought  by  any  banking  association  established  in  the  district  for 
which  the  court  is  held,  under  the  provisions  of  title  "National  Banks," 
Revised  Statutes,  to  enjoin,  the  Comptroller  of  the  Currency,  or  any  re 
celver  acting  under  his  direction,  as  provided  by  said  title.  And  all 
national  banking  associations  established  under  the  laws  of  the  United 
States  shall,  for  the  purposes  of  all  other  actions  by  or  against  them, 


686  APPENDIX. 

real,  personal,  or  mixed,  and  all  suits  In  equity,  be  deemed  citizens  of 
the  States  in  which  they  are  respectively  located. 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only,  in  vio- 
lation of  the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

Eighteenth.     Of  all  suits  against  consuls  and  vice  consuls. 

Nineteenth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Twentieth.  Concurrent  with  the  Court  of  Claims,  of  all  claims  not 
exceeding  ten  thousand  dollars  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  or  upon  any  regulation  of  an 
Executive  Department,  or  upon  any  contract,  express  or  implied,  with 
the  Government  of  the  United  States,  or  for  damages,  liquidated  or  un- 
liquidated, in  cases  not  sounding  in  tort,  in  respect  to  which  claims  the 
party  would  be  entitled  to  redress,  against  the  United  States,  either  in 
a  court  of  law,  equity,  or  admiralty,  if  the  United  States  were  suable, 
and  of  all  set-offs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of  the 
Government  of  the  United  States  against  any  claimant  against  the  Gov- 
ernment in  said  court:  Provided,  however,  that  nothing  in  this  para- 
graph shall  be  construed  as  giving  to  either  the  district  courts  or  the 
Court  of  Claims  jurisdiction  to  hear  and  determine  claims  growing  out 
of  the  late  Civil  War,  and  commonly  known  as  "war  claims,"  or  to  hear 
and  determine  other  claims  which  had  been  rejected  or  reported  on  ad- 
versely prior  to  the  third  day  of  March,  eighteen  hundred  and  eighty- 
seven,  by  any  court,  department,  or  commission  authorized  to  hear  and 
determine  the  same,  or  to  hear  and  determine  claims  for  pensions;  or  as 
giving  to  the  District  Courts  jurisdiction  of  cases  brought  to  recover  fees, 
salary,  or  compensation  for  official  services  of  officers  of  the  United  States 
or  brought  for  such  purpose  by  persons  claiming  as  such  officers  or  as 
assignees  or  legal  representatives  thereof;  but  no  suit  pending  on  the 
twenty-seventh  day  of  June,  eighteen  hundred  and  ninety-eight,  shall 
abate  or  be  affected  by  this  provision:  And  provided  further,  that  no  suit 
against  the  Government  of  the  United  States  shall  be  allowed  under  this 
paragraph  unless  the  same  shall  have  been  brought  within  six  years 
after  the  right  accrued  for  which  the  claim  is  made:  Provided,  that  the 
claims  of  married  women,  first  accrued  during  marriage,  of  persons 
under  the  age  of  twenty-one  years,  first  accrued  during  minority,  and  of 
Idiots,  lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the  time 
the  claim  accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  suit 
be  brought  within  three  years  after  the  disability  has  ceased;  but  no 
other  disabilities  than  those  enumerated  shall  prevent  any  claim  from 
being  barred,  nor  shall  any  of  the  said  disabilities  operate  cumulatively. 
All  suits  brought  and  tried  under  the  provisions  of  this  paragraph  shall 
be  tried  by  the  court  without  a  jury. 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction,  to  re- 
strain violations  of  the  provisions  of  laws  of  the  United  States  to  pre- 
vent the  unlawful  inclosure  of  public  lands;  and  it  shall  be  sufficient  to 


APPENDIX.  687 

give  the  court  jurisdiction  If  service  of  original  process  be  had  in  any 
civil  proceedings  on  any  agent  or  employee  having  charge  or  control 
of  the  inclosuro. 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  the  immigration  of  aliens,  or  under  the  contract  labor  laws. 

Twenty-third.  Of  all  suits  and  proceedings  arising  under  any  law 
to  protect  trade  and  commerce  against  restraints  and  monopolies. 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving  the 
right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent,  to 
any  allotment  of  land  under  any  law  or  treaty. 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  common  or 
joint  tenant  for  the  partition  of  lands  in  cases  where  the  United  States 
is  one  of  such  tenants  in  common  or  joint  tenants,  such  suits  to  be 
brought  in  the  District  in  which  such  land  is  situate. 

Section  25.  The  District  Courts  shall  have  appellate  Jurisdiction  of 
the  judgments  and  orders  of  United  States  commissioners  in  cases  aris- 
ing under  the  Chinese  exclusion  laws. 

Chapter  Three  regulates  removal  of  cases  from  State  to  Federal 
Courts. 

Chapter  Four  contains  "Miscellaneous  Provisions"  relating  largely  to 
matters  of  venue. 

Chapter  Five  sets  out  the  several  judicial  districts. 

This  concludes  the  provisions  relating  exclusively  to  the  District 
Courts. 

Chapter  Six  provides  for  nine  Circuit  Courts  of  Appeals  and  gives 
the  States  in  each  circuit.  Each  of  these  Circuit  Courts  of  Appeals 
shall  consist  of  three  judges.  Judges  of  the  Supreme  Court,  Circuit 
Judges  and  District  Judges  are  eligible  to  sit  in  these  courts.  There 
are  detailed  provisions  as  to  the  organization  of  these  courts  and  mat- 
ters of  practice  in  them.  The  jurisdiction  of  these  courts,  as  a  class, 
is  given  in  Sections  128-130,  copied  below.  Other  sections  confer  spe- 
cial jurisdiction  as  to  different  territorial  courts,  courts  in  Alaska,  etc. 

"Section  128.  The  Circuit  Courts  of  Appeals  shall  exercise  appellate 
jurisdiction  to  review  by  appeal  or  writ  of  error  final  decisions  in  the 
District  Courts,  including  the  United  States  District  Court  for  Hawaii, 
in  all  cases  other  than  those  in  which  appeals  and  writs  of  error  may 
be  taken  direct  to  the  Supreme  Court,  as  provided  in  section  two  hun- 
dred and  thirty-eight,  unless  otherwise  provided  by  law;  and,  except 
as  provided  in  sections  two  hundred  and  thirty-nine,  and  two  hundred 
and  forty,  the  Judgments  and  decrees  of  the  Circuit  Courts  of  Appeals 
shall  be  final  in  all  cases  in  which  the  jurisdiction  is  dependent  entirely 
upon  the  opposite  parties  to  the  suit  or  controversy  being  aliens  and 
citizens  of  the  United  States,  or  citizens  of  different  States;  also  in  all 
cases  arising  under  the  patent  laws,  under  the  copyright  laws,  under 
the  revenue  laws,  and  under  the  criminal  laws,  and  in  admiralty  cases. 

"Section  129.    Where  upon  a  hearing  in  equity  in  a  District  Court, 


688  APPENDIX. 

or  by  a  Judge  thereof  In  vacation,  an  injunction  shall  he  granted,  con- 
tinued, refused,  or  dissolved  by  an  interlocutory  order  or  decree,  or 
an  application  to  dissolve  an  injunction  shall  be  refused,  or  an  inter- 
locutory order  or  decree  shall  be  made  appointing  a  receiver,  an  appeal 
may  be  taken  from  such  interlocutory  order  or  decree  granting,  contin- 
uing, refusing,  dissolving,  or  refusing  to  dissolve,  an  injunction,  or  ap- 
pointing a  receiver,  to  the  Circuit  Court  of  Appeals,  notwithstanding 
an  appeal  in  such  case  might,  upon  final  decree  under  the  statutes  reg- 
ulating the  same,  be  taken  directly  to  the  Supreme  Court:  Provided, 
that  the  appeal  must  be  taken  within  thirty  days  from  the  entry  of  such 
order  or  decree,  and  it  shall  take  precedence  in  the  Appellate  Court; 
and  the  proceedings  in  other  respects  in  the  court  below  shall  not  be 
stayed  unless  otherwise  ordered  by  that  court,  or  the  Appellate  Court. 
or  a  judge  thereof,  during  the  pendency  of  such  appeal:  Provided,  how- 
ever, that  the  court  below  may,  in  its  discretion,  require  as  a  condition 
of  the  appeal  an  additional  bond. 

"Section  130.  The  Circuit  Courts  of  Appeals  shall  have  the  appellate 
and  supervisory  jurisdiction  conferred  upon  them  by  the  Act  entitled 
'An  Act  to  establish  a  uniform  system  of  bankruptcy  throughout  the 
United  States,'  approved  July  first,  eighteen  hundred  and  ninety-eight, 
and  all  laws  amendatory  thereof,  and  shall  exercise  the  same  In  the 
manner  therein  prescribed." 

Chapter  Seven  deals  with  the  Court  of  Claims  which  is  not  of  general 
Interest. 

Chapter  Eight  provides  for  a  Court  of  Customs  Appeals  to  consist 
of  a  presiding  judge  and  four  associate  judges.  Its  jurisdiction  is  given 
In  section  195,  as  follows:  , 

"Sec.  195.  The  Court  of  Customs  Appeals  established  by  this  chapter 
shall  exercise  exclusive  appellate  jurisdiction  to  review  by  appeal,  as 
herein  provided,  final  decisions  by  a  Board  of  General  Appraisers  in  all 
cases  as  to  the  construction  of  the  law  and  the  facts  respecting  the 
classification  of  merchandise,  and  the  rate  of  duty  imposed  thereon  un- 
der such  classification,  and  the  fees  and  charges  connected  therewith, 
and  all  appealable  questions  as  to  the  jurisdiction  of  said  board,  and 
all  appealable  questions  as  to  the  laws  and  regulations  governing  the 
collection  of  the  customs  revenues;  and  the  judgments  and  decrees  of 
said  Court  of  Customs  Appeals  shall  be  final  in  all  such  cases." 

Chapter  Nine  provides  for  "The  Commerce  Court"  to  consist  of  five 
circuit  judges,  those  of  the  first  court  to  be  appointed  by  the  President, 
thereafter  the  members  to  be  designated  by  the  Chief  Justice  of  the 
Supreme  Court  from  among  the  regular  circuit  judges. 

Its  jurisdiction  is  as  follows: 

"Sec.  207.  The  Commerce  Court  shall  have  the  jurisdiction  possessed 
by  the  Circuit  Courts  of  the  United  States  and  the  judges  thereof  im- 
mediately prior  to  June  eighteenth,  nineteen  hundred  and  ten,  over  all 
cases  of  the  following  kinds: 


APPENDIX.  689 

"First.  All  cases  for  the  enforcement,  otherwise  than  by  adjudica- 
tion and  collection  of  a  forfeiture  or  penalty  or  by  infliction  of  criminal 
punishment,  of  any  order  of  the  Interstate  Commerce  Commission  other 
than  for  the  payment  of  money. 

"Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  In 
whole  or  in  part  any  order  of  the  Interstate  Commerce  Commission. 

"Third.  Such  cases  as  by  section  three  of  the  Act  entitled  'An  Act 
to  further  regulate  commerce  with  foreign  nations  and  among  the 
States,'  approved  February  nineteenth,  nineteen  hundred  and  three, 
are  authorized  to  be  maintained  in  a  Circuit  Court  of  the  United  States. 

"Fourth.  All  such  mandamus  proceedings  as  under  the  provisions 
of  section  twenty  or  section  twenty-three  of  the  Act  entitled  'An  Act 
to  regulate  commerce,'  approved  February  fourth,  eighteen  hundred  and 
eighty-seven,  as  amended,  are  authorized  to  be  maintained  in  a  Cir- 
cuit Court  of  the  United  States. 

"Nothing  contained  in  this  chapter  shall  be  construed  as  enlarging 
the  jurisdiction  now  possessed  by  the  circuit  courts  of  the  United  States 
or  the  judges  thereof,  that  is  hereby  transferred  to  and  vested  in  the 
Commerce  Court. 

•The  jurisdiction  of  the  Commerce  Court  over  cases  of  the  foregoing 
classes  shall  be  exclusive;  but  this  chapter  shall  not  affect  the  juris- 
diction possessed  by  any  circuit  or  district  court  of  the  United  States 
over  cases  or  proceedings  of  a  kind  not  within  the  above-enumerated 
classes." 

The  judgments  of  the  Circuit,  Courts  of  Appeals  are  subject  to  revision 
by  the  Supreme  Court  upon  appeal  as  provided  in  the  act. 

Chapter  Ten  relates  to  the  Supreme  Court.  This  court,  as  now,  con- 
sists of  a  Chief  Justice  and  eight  Associate  Justices  appointed  by  the 
President,  who  hold  for  life  or  during  good  behavior.  The  following 
sections  declare  its  jurisdiction: 

"Sec.  233.  The  Supreme  Court  shall  have  exclusive  jurisdiction  of 
all  controversies  of  a  civil  nature  where  a  State  is  a  party,  except  be- 
tween a  State  and  its  citizens,  or  between  a  State  and  citizens  of  other 
States,  or  aliens,  in  which  latter  cases  it  shall  have  original,  but  not  ex- 
clusive, jurisdiction.  And  it  shall  have  exclusively  all  such  jurisdic- 
tion of  suits  or  proceedings  against  ambassadors  or  other  public  min- 
isters, or  their  domestics  or  domestic  servants,  as  a  court  of  law  can 
have  consistently  with  the  law  of  nations;  and  original,  but  not  ex- 
clusive, jurisdiction,  of  all  suits  brought  by  ambassadors,  or  other  pub- 
lic ministers,  or  in  which  a  consul  or  vice  consul  Is  a  party. 

"Sec.  234.  The  Supreme  Court  shall  have  power  to  issue  writs  of 
prohibition  to  the  District  Courts,  when  proceeding  as  courts  of  ad- 
miralty and  maritime  jurisdiction;  and  writs  of  mandamus,  in  cases 
warranted  by  the  principles  and  usages  of  law,  to  any  courts  appointed 
under  the  authority  of  the  United  States,  or  to  persons  holding  office 
under  the  authority  of  the  United  States,  where  a  State,  or  an  ambas- 
sador, or  other  public  minister,  or  a  consul,  or  vice  consul  is  a  party. 
44 


690  APPENDIX. 

"Sec.  235.  The  trial  of  issues  of  fact  in  the  Supreme  Court,  in  all 
actions  at  law  against  citizens  of  the  United  States,  shall  be  by  jury. 

"Sec.  236.  The  Supreme  Court  shall  have  appellate  jurisdicton  in  the 
cases  hereinafter  specially  provided  for. 

"Sec.  237.  A  final  judgment  or  decree  in  any  suit  in  the  highest 
court  of  a  State  in  which  a  decision  in  the  suit  could  be  had,  where  is 
drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  an  author- 
ity exercised  under,  the  United  States,  and  the  decision  is  against  their 
validity;  or  where  is  drawn  in  question  the  validity  of  a  statute  of,  or 
an  authority  exercised  under  any  State,  on  the  ground  of  their  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  their  validity;  or  where  any  right,  title, 
privilege,. or  immunity  is  claimed  under  the  Constitution,  or  any  treaty 
or  statute  of,  or  commission  held  or  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  the  title,  right,  privilege,  or 
immunity  especially  set  up  or  claimed,  by  either  party,  under  Constitu- 
tion, treaty,  statute,  commission,  or  authority,  may  be  re-examined  and 
reversed  or  affirmed  in  the  Supreme  Court  upon  writ  of  error.  The 
writ  shall  have  the  same  effect  as  if  the  judgment  or  decree  complained 
of  had  been  rendered  or  passed  in  a  court  of  the  United  States.  The 
Supreme  Court  may  reverse,  modify,  or  affirm  the  judgment  or  decree 
of  such  State  court,  and  may,  at  their  discretion,  award  execution  or 
remand  the  same  to  the  court  from  which  it  was  removed  by  the  writ. 

"Sec.  238.  Appeals  and  writs  of  error  may  be  taken  from  the  Dis- 
trict Courts,  including  the  United  States  District  Court  for  Hawaii, 
direct  to  the  Supreme  Court  in  the  following  cases:  In  any  case  in 
which  the  jurisdiction  of  the  court  is  in  issue,  in  which  case  the  ques- 
tion of  jurisdiction  alone  shall  be  certified  to  the  Supreme  Court  from 
the  court  below  for  decision;  from  the  final  sentences  and  decrees  in 
prize  causes;  in  any  case  that  involves  the  construction  or  application 
of  the  Constitution  of  the  United  States,  in  any  case  in  which  the  con- 
stitutionality of  any  law  of  the  United  States,  or  the  validity  or  con- 
struction of  any  treaty  made  under  its  authority  is  drawn  in  question; 
and  in  any  case  in  which  the  constitution  or  law  of  a  State  is  claimed 
to  be  in  contravention  of  the  Constitution  of  the  United  States. 

"Sec.  239.  In  any  case  within  its  appellate  jurisdiction,  as  defined 
in  section  one  hundred  and  twenty-eight,  the  Circuit  Court  of  Appeals 
at  any  time  may  certify  to  the  Supreme  Court  of  the  United  States  any 
questions  or  propositions  of  law  concerning  which  it  desires  the  in- 
struction of  that  court  for  its  proper  decision;  and  thereupon  the  Su- 
preme Court  may  either  give  its  instruction  on  the  questions  and  propo- 
sitions certified  to  it,  which  shall  be  binding  upon  the  Circuit  Court  of 
Appeals  in  such  case,  or  it  may  require  that  the  whole  record  and  cause 
be  sent  up  to  it  for  its  consideration,  and  thereupon  shall  decide  the 
whole  matter  in  controversy  in  the  same  manner  as  if  it  had  been 
brought  there  for  review  by  writ  of  error  or  appeal. 


APPENDIX.  691 

"Sec.  240.  In  any  case,  civil  or  criminal,  In  which  the  Judgment  or 
decree  of  the  Circuit  Court  of  Appeals  is  made  final  by  the  provisions  of 
this  Title,  it  shall  be  competent  for  the  Supreme  Court  to  require,  by 
certiorari  or  otherwise,  upon  the  petition  .of  any  party  thereto,  any 
such  case  to  be  certified  to  the  Supreme  Court  for  its  review  and  de- 
termination, with  the  same  power  and  authority  in  the  case  as  if  it  had 
been  carried  by  appeal  or  writ  of  error  to  the  Supreme  Court. 

"Sec.  241.  If  any  case  in  which  the  judgment  or  decree  of  the  Cir- 
cuit Court  of  Appeals  is  not  made  final  by  the  provisions  of  this  Title, 
there  shall  be  of  right  an  appeal  or  writ  of  error  to  the  Supreme  Court 
of  the  United  States  where  the  matter  in  controversy  shall  exceed  one 
thousand  dollars,  besides  costs. 

"Sec.  242.  An  appeal  to  the  Supreme  Court  shall  be  allowed  on  be- 
half of  the  United  States,  from  all  judgments  of  the  Court  of  Claims 
adverse  to  the  United  States,  and  on  behalf  of  the  plaintiff  In  any  case 
where  the  amount  in  controversy  exceeds  three  thousand  dollars,  or 
where  his  claim  is  forfeited  to  the  United  States  by  the  judgment  of 
said  court  as  provided  in  section  one  hundred  and  seventy-two. 

"Sec.  243.  All  appeals  from  the  Court  of  Claims  shall  be  taken  within 
ninety  days  after  the  judgment  is  rendered,  and  shall  be  allowed  under 
such  regulations  as  the  Supreme  Court  may  direct. 

"Sec.  244.  Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  Supreme  Court  of,  and  the  United  States  District  Court 
for,  Porto  Rico,  may  be  taken  and  prosecuted  to  the  Supreme  Court 
of  the  United  States,  in  any  case  wherein  is  involved  the  validity  of 
any  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  authority  exercised  under,  the  United  States,  or  wherein 
the  Constitution  of  the  United  States,  or  a  treaty  thereof,  or  an  Act 
of  Congress  is  brought  in  question  and  the  right  claimed  thereunder  is 
denied,  without  regard  to  the  sum  or  value  of  the  matter  in  dispute; 
and  in  all  other  cases  in  which  the  sum  or  value  of  the  matter  in  dis- 
pute, exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either  party 
or  of  other  competent  witnesses,  exceeds  the  sum  or  value  of  five  thou- 
sand dollars.  Such  writs  of  error  and  appeals  shall  be  taken  within 
the  same  time,  in  the  same  manner,  and  under  the  same  regulations 
as  writs  of  error  and  appeals  are  taken  to  the  Supreme  Court  of  the 
United  States  from  the  District  Courts. 

"Sec.  245.  Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  Supreme  Courts  of  the  Territories  of  Arizona  and  New 
Mexico  may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the 
United  States  in  any  case  wherein  is  involved  the  validity  of  any  copy- 
right, or  in  which  is  drawn  in  question  the  validity  of  a  treaty  or  stat- 
ute of,  or  authority  exercised  under,  the  United  States,  without  regard 
to  the  sum  or  value  of  the  matter  in  dispute;  and  in  all  other  cases  in 
which  the  sum  or  value  of  the  matter  in  dispute  exclusive  of  costs,  to 
be  ascertained  by  the  oath  of  either  party  or  of  other  competent  wit- 
nesses, exceeds  the  sum  or  value  of  five  thousand  dollars. 


G92  APPENDIX. 

"Sec.  246.  Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  Supreme  Court  of  the  Territory  of  Hawaii  may  be  taken 
and  prosecuted  in  the  Supreme  Court  of  the  United  States,  within  the 
same  time,  in  the  same  manner,  under  the  same  regulations,  and  in  the 
same  classes  of  cases,  in  which  writs  of  error  and  appeals  from  the 
final  judgments  and  decrees  of  the  highest  court  of  a  State  in  which  a 
decision  in  the  suit  could  he  had,  may  be  taken  and  prosecuted  to  the 
Supreme  Court  of  the  United  States  under  the  provisions  of  section 
two  hundred  and  thirty-seven;  and  also  in  all  cases  wherein  the  amount 
involved,  exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either  party 
or  of  other  competent  witnesses,  exceeds  the  sum  or  value  of  five  thou- 
sand dollars. 

"Sec.  247.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted 
from  final  judgments  and  decrees  of  the  District  Court  for  the  district 
of  Alaska  or  for  any  division  thereof,  direct  to  the  Supreme  Court  of 
the  United  States,  in  the  following  cases:  In  prize  cases;  and  in  all 
cases  which  involve  the  construction  or  application  of  the  Constitution 
of  the  United  States,  or  in  which  the  constitutionality  of  any  law  of  the 
United  States,  or  the  validity  or  construction  of  any  treaty  made  under 
Its  authority  is  drawn  in  question,  or  in  which  the  constitution  or  law 
of  a  State  is  claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States.  Such  writs  of  error  and  appeal  shall  be  taken  within 
the  same  time,  in  the  same  manner,  and  under  the  same  regulations  as 
writs  of  error  and  appeals  are  taken  from  the  District  Courts  to  the 
Supreme  Court. 

"Sec.  248.  The  Supreme  Court  of  the  United  States  shall  have  juris- 
diction to  review,  revise,  reverse,  modify,  or  affirm  the  final  judgments 
and  decrees  of  the  Supreme  Court  of  the  Philippine  Islands  in  all  ac- 
tions, cases,  causes,  and  proceedings  now  pending  therein  or  hereafter 
determined  thereby,  in  which  the  Constitution,  or  any  statute,  treaty, 
title,  right,  or  privilege  of  the  United  States  is  involved,  or  in  causes 
in  which  the  value  in  controversy  exceeds  twenty-five  thousand  dollars, 
or  in  which  the  title  or  possession  of  real  estate  exceeding  in  value  the 
sum  of  twenty-five  thousand  dollars,  to  be  ascertained  by  the  oath  of 
either  party  or  of  other  competent  witnesses,  is  involved  or  brought  in 
question;  and  such  final  judgments  or  decrees  may  and  can  be  reviewed, 
revised,  reversed,  modified,  or  affirmed  by  said  Supreme  Court  on  ap- 
peal or  writ  of  error  by  the  party  aggrieved,  within  the  same  time,  in 
the  same  manner,  under  the  same  regulations,  and  by  the  same  pro- 
cedure, as  far  as  applicable,  as  the  final  judgments  and  decrees  of  the 
District  Courts  of  the  United  States. 

"Sec.  249.  In  all  cases  where  the  judgment  or  decree  of  any  court  of 
a  Territory  might  be  reviewed  by  the  Supreme  Court  on  writ  of  error 
or  appeal,  such  writ  of  error  or  appeal  may  be  taken,  within  the  time 
and  in  the  manner  provided  by  law,  notwithstanding  such  Territory 
has,  after  such  judgment  or  decree,  been  admitted  as  a  State;  and  the 


APPENDIX.  693 

Supreme  Court  shall  direct  the  mandate  to  such  court  as  the  nature  of 
the  writ  of  error  or  appeal  requires. 

"Sec.  250.  Any  final  judgment  or  decree  of  the  Court  of  Appeals  of 
the  District  of  Columbia  may  he  re-examined  and  affirmed,  reversed,  or 
modified  by  the  Supreme  Court  of  the  United  States,  upon  writ  of  er- 
ror or  appeal,  in  the  following  cases: 

"First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  Is  In 
Issue;  but  when  any  such  case  Is  not  otherwise  reviewable  in  said  Su- 
preme Court,  then  the  question  of  jurisdiction  alone  shall  be  certified 
to  said  Supreme  Court  for  decision. 

"Second.     In  prize  cases. 

'Third.  In  cases  involving  the  construction  or  application  of  the 
Constitution  of  the  United  States,  or  the  constitutionality  of  any  law 
of  the  United  States,  or  the  validity  of  any  treaty  made  under  Its  au- 
thority. 

"Fourth.  In  cases  in  which  the  constitution,  or  any  law  of  a  State  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United  States. 

"Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised 
under  the  United  States,  or  the  existence  or  scope  of  any  power  or  duty 
of  an  officer  of  the  United  States  is  drawn  in  question. 

"Sixth.  In  cases  in  which  the  construction  of  any  law  of  the  United 
States  is  drawn  in  question  by  the  defendant. 

"Except  as  provided  in  the  next  succeeding  section,  the  judgments 
and  decrees  of  said  Court  of  Appeals  shall  be  final  in  all  cases  arising 
under  the  patent  laws,  the  copyright  laws,  the  revenue  laws,  the  crim- 
inal laws,  and  in  admiralty  cases;  and,  except  as  provided  in  the  next 
succeeding  section,  the  judgments  and  decrees  of  said  Court  of  Ap- 
peals shall  be  final  in  all  cases  not  reviewable  as  hereinbefore  provided. 

"Writs  of  error  and  appeals  shall  be  taken  within  the  same  time,  in 
the  same  manner,  and  under  the  same  regulations  as  writs  of  error  and 
appeals  are  taken  from  the  Circuit  Courts  of  Appeals  to  the  Supreme 
Court  of  the  United  States. 

"Sec.  251.  In  any  case  in  which  the  judgment  or  decree  of  said  court 
of  appeals  is  made  final  by  the  section  last  preceding,  It  shall  be  com- 
petent for  the  Supreme  Court  of  the  United  States  to  require,  by  cer- 
tiorari or  otherwise,  any  such  case  to  be  certified  to  It  for  its  review 
and  determination,  with  the  same  power  and  authority  In  the  case  as 
If  it  had  been  carried  by  writ  of  error  or  appeal  to  said  Supreme  Court. 
It  shall  also  be  competent  for  said  Court  of  Appeals,  in  any  case  in 
which  its  judgment  or  decree  is  made  final  under  the  section  last  pre- 
ceding, at  any  time  to  certify  to  the  Supreme  Court  of  the  United  States 
any  questions  or  propositions  of  law  concerning  which  it  desires  the 
Instruction  of  that  court  for  their  proper  decision;  and  thereupon  the 
Supreme  Court  may  either  give  its  instruction  on  the  questions  or 
propositions  certified  to  it,  which  shall  be  binding  upon  said  Court  of 
Appeals  in  such  case;  or  it  may  require  that  the  whole  record  and  cause 


694  APPENDIX. 

be  sent  up  to  it  for  Its  consideration,  and  thereupon  shall  decide  the 
whole  matter  in  controversy  in  the  same  manner  as  if  it  had  been 
brought  there  for  review  by  writ  of  error  or  appeal. 

"Sec.  252.  The  Supreme  Court  of  the  United  States  is  hereby  Invested 
with  appellate  jurisdiction  of  controversies  arising  in  bankruptcy  pro- 
ceedings, from  the  courts  of  bankruptcy,  from  which  it  has  appellate 
Jurisdiction  in  other  cases;  and  shall  exercise  a  like  jurisdiction  from 
courts  of  bankruptcy  not  within  any  organized  circuit  of  the  United 
States  and  from  the  Supreme  Court  of  the  District  of  Columbia. 

"An  appeal  may  be  taken  to  the  Supreme  Court  of  the  United  States 
from  any  final  decision  of  a  Court  of  Appeals  allowing  or  rejecting  a 
claim  under  the  laws  relating  to  bankruptcy,  under  such  rules  and 
within  such  time  as  may  be  prescribed  by  said  Supreme  Court,  in  the 
following  cases  and  no  other: 

"First.  Where  the  amount  in  controversy  exceeds  the  sum  of  two 
thousand  dollars,  and  the  question  involved  is  one  which  might  have 
been  taken  on  appeal  or  writ  of  error  from  the  highest  court  of  a  State 
to  the  Supreme  Court  of  the  United  States;  or 

"Second.  Where  some  justice  of  the  Supreme  Court  shall  certify 
that  in  his  opinion  the  determination  of  the  question  involved  in  the 
allowance  or  rejection  of  such  claim  is  essential  to  a  uniform  construc- 
tion of  the  laws  relating  to  bankruptcy  throughout  the  United  States. 

"Controversies  may  be  certified  to  the  Supreme  Court  of  the  United 
States  from  other  courts  of  the  United  States,  and  the  former  court  may 
exercise  jurisdiction  thereof,  and  may  issue  writs  of  certiorari  pur- 
suant to  the  provisions  of  the  United  States  laws  now  in  force  or  such 
as  may  be  hereafter  enacted. 

"Sec.  253.  Cases  on  writ  of  error  to  revise  the  judgment  of  a  State 
court  in  any  criminal  case  shall  have  precedence  on  the  docket  of  the 
Supreme  Court,  of  all  cases  to  which  the  Government  of  the  United 
States  is  not  a  party,  excepting  only  such  cases  as  the  court,  in  its  dis- 
cretion, may  decide  to  be  of  public  importance." 

Chapter  Eleven  deals  with  "provisions  common  to  more  than  one 
court."  The  first  section  of  the  chapter  declares  when  the  jurisdiction 
of  the  Federal  Courts  shall  be  exclusive  of  that  of  the  several  State 
courts,  and  Is  quite  interesting.     It  is  in  this  language: 

"Sec.  256.  The  jurisdiction  vested  in  the  courts  of  the  United  States 
In  the  cases  and  proceedings  hereinafter  mentioned,  shall  be  exclusive 
of  the  courts  of  the  several  states: 

"First.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. 

"Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under 
the  laws  of  the  United  States. 

"Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction; 
saving  to  suitors,  in  all  cases,  the  right  of  a  common-law  remedy,  where 
the  common  law  Is  competent  to  give  it 


APPENDIX.  695 

"Fourth.  Of  all  seizures  under  the  laws  of  the  United  States,  on  land 
or  on  waters  not  within  admiralty  and  maritime  jurisdiction;  of  all 
prizes  brought  into  the  United  States;  and  of  all  proceedings  for  the 
condemnation  of  property  taken  as  prize. 

"Fifth.  Of  all  cases  arising  under  the  patent-right,  or  copy-right 
laws  of  the  United  States. 

"Sixth.     Of  all  matters  and  proceedings  in  bankruptcy. 

"Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  State  la 
a  party,  except  between  a  State  and  its  citizens,  or  between  a  State  and 
citizens  of  other  States,  or  aliens. 

"Eighth.  Of  all  suits  and  proceedings  against  ambassadors,  or  other 
public  ministers,  or  their  domestics,  or  domestic  servants,  or  against 
consuls  or  vice-consuls." 

Chapter  Twelve  regulates  juries  In  the  Federal  Courts. 

Chapter  Thirteen  contains  general  provisions,  principally  providing 
against  injustice  or  delay  by  reason  of  the  changes  made  by  the  act 

Chapter  Fourteen  contains  the  repealing  provisions  and  still  further 
safeguards  the  rights  of  litigants  whose  cases  should  be  pending  when 
the  act  goes  into  effect. 

This  concludes  the  Act. 


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